THE  GIFT  OF 

MAY  TREAT  MORRISON 

IN  MEMORY  OF 

ALEXANDER  F  MORRISON 


American  Political  History 

1763*1876 

By  ALEXANDER  JOHNSTON 

Edited  and  Supplemented  by  James  Albert  Woodburn, 

Professor  of  History    and    Political  Science, 

Indiana  University 


In   Two   Volumes.     Octavo 
(Each  complete  in  itself  and  indexed) 

1.  The  Revolution,  the  Constitution,  and  the 

Growth  of  Nationality.     1763-1832 

2.  The  Slavery  Controversy,  Secession,  Civil 

War,  and  Reconstruction.    1820-1876 


AMERICAN  POLITICAL 
HISTORY 

1763-1876 


BY 

ALEXANDER  JOHNSTON 


EDITED  AND  SUPPLEMENTED  BY 

JAMES  ALBERT  WOODBURN 

PROFESSOR   OF    AMERICAN    HISTORY    AND    POLITICS 
INDIANA  UNIVERSITY 


THE  SLAVERY  CONTROVERSY,  CIVIL  WAR  AND 
RECONSTRUCTION,   1820-1876 


G.  P.  PUTNAM'S  SONS 

NEW  YORK  AND    LONDON 

ttbe  Knickerbocker  press 
1905 


COPYRIGHT,  1905 

BY 
G.  P.  PUTNAM'S  SONS 


"Che  ftnfcfterbocfcer  press,  flew  J&ocft 


CONTENTS 

PAGE 

CHAPTER  I 
SLAVERY  IN  THE  UNITED  STATES  .        .      , »        .        .        I 

CHAPTER  II 
THE  ABOLITION  AGITATION.     -.-'.'      .         .         .       42 

CHAPTER  III 
TEXAS  AND  OREGON 66 

CHAPTER  IV 
v    THE  WILMOT  PROVISO 82 

CHAPTER  V 
COMPROMISES  IN  AMERICAN  HISTORY   .         .        .        .     101 

CHAPTER  VI 
THE  FUGITIVE  SLAVE   .         .         .  .         .         .     127 

CHAPTER   VII 

THE  KANSAS-NEBRASKA  BILL  :  POPULAR  SOVEREIGNTY 

AND  THE  STRUGGLE  FOR  KANSAS          .        .         .     141 

CHAPTER  VIII 
\  '  THE  DRED  SCOTT  CASE 169 

CHAPTER   IX 

POLITICAL  PARTIES,  1824-1861      ..'...     178 

iii 


429852 


iv  Contents 

CHAPTER   X 

PAGE 

v    THE  SECESSION  MOVEMENT 280 

CHAPTER  XI 

V  THE  CONFEDERACY  AND  STATE  SOVEREIGNTY     .        .312 

CHAPTER  XII 

THE  REBELLION    .        .        .        .        .        .  .     365 

CHAPTER  XIII 
POLITICAL  EVENTS  OF  THE  CIVIL  WAR       .        .        .     388 

CHAPTER   XIV 
RECONSTRUCTION — PART  I  .         .         .         .         .         .     427 

CHAPTER   XV 
RECONSTRUCTION — PART  II 48° 

CHAPTER  XVI 

THE  ELECTORAL  COLLEGE  AND  ITS  HISTORY      .        .     508 

CHAPTER   XVII 
PARTIES  AFTER  1861 •         •     555 


INDEX  


THE  SLAVERY  CONTROVERSY 

1820-1860 


The  Slavery  Controversy 


CHAPTER  I 

SLAVERY  IN  THE  UNITED   STATES 

IT  may  be  laid  down  as  a  fundamental  proposition,  that 
negro  slavery  in  the  Colonies  never  existed  or  was 
originally  established  by  law,  but  that  it  rested  wholly 
on  custom.  The  dictum,  so  often  quoted,  that  slavery, 
being  a  breach  of  natural  right,  can  be  valid  only  by 
positive  law,  is  not  true:  it  is  rather  true  that  slavery, 
where  it  existed,  being  the  creature  of  custom,  required 
positive  law  to  abolish  or  control  it. 

In  Great  Britain,  in  1772,  custom  had  made  slavery  so 
odious  that  the  Sommersett  case  justly  held  that  positive 
law  was  necessary  for  the  establishment  of  slavery  there 
in  any  form;  but  the  exact  contrary  of  this  rule,  of 
course,  held  good  in  commonwealths  where  custom  made 
slavery  not  odious,  but  legal.  In  these  cases  the  laws 
which  were  passed  in  regard  to  slavery  were  only  declara- 
tory of  a  custom  already  established,  and  cannot  be  said 
to  have  established  slavery. 

The  whole  slavery  struggle  is  therefore  the  history  of  a 
custom  at  first  universal  in  the  Colonies,  then  peacefully 
circumscribed  by  the  rise  of  a  moral  feeling  opposed  to 
it,  but  suddenly  so  fortified  in  its  remaining  territory  by 


§)  The  Slavery  Controversy 

the  rise  of  an  enormous  material  interest  as  to  make  the 
final  struggle  one  of  force. 

In  outlining  the  history  of  negro  slavery  in  the  United 
States,  it  seems  advisable  to  make  the  following  subdivi- 
sions: i,  the  introduction  of  slavery,  and  its  increase;  2, 
its  internal  policy,  3.  the  slave  trade,  foreign  and  do- 
mestic; 4,  the  suffrage  clause  and  the  "slave  power"; 
and  5,  slavery  in  the  Territories,  including  new  States. 
The  final  abolition  of  slavery  in  each  State,  in  the  Terri- 
_tories,  and  in  the  nation,  is  treated  elsewhere.1 

I.  INTRODUCTION  OF  SLAVERY,  AND  ITS  INCREASE. — 
I  When  English  colonization  in  North  America  began,  In- 
dian and  negro  slavery  was  already  firmly  established  in 
the  neighboring  Spanish  Colonies;  and  from  these,  par- 
ticularly from  the  West  Indies,  negro  slavery  was  naturally 
and  unconsciously  introduced  into  the  English  Colonies, 
the  Barbadoes  being  the  stepping-stone  for  most  of 
them.  Nevertheless,  the  first  authentic  case  of  intro- 
duction was  from  an  entirely  different  source.  In  August, 
1619,  a  Dutch  man-of-war,  temporarily  in  Virginia,  landed 
fourteen  negro  slaves  in  exchange  for  provisions.  This 
is  the  only  Colony  in  which  a  first  case  can  be  found. 
Everywhere  else  we  find  slavery,  when  first  casually  men- 
tioned, an  institution  so  long  established  as  to  have  lost 
its  novelty. 

In  each  of  them  there  are  three  points  to  be  noted  :  the 
first  mention  of  slavery,  its  first  regulation  by  law,  and  the 
establishment,  by  custom  or  positive  law,  of  the  civil  law 
rule,  partus  sequitur  ventrem,  instead  of  the  common  law 
rule,  partus  sequitur  patrem.  The  latter  rule,  making 
children  take  the  condition  of  the  father,  was  the  natural 
rule  for  English  colonists,  would  have  made  negro  slavery 
far  more  tolerable,  and  would  have  established  a  constant 
agent  for  its  ultimate  extinction,  since  any  connection 
between  a  slave  father  and  a  free  mother  would  have 

1  See  Abolition. 


Slavery  in  the  United  States  (3) 

been  comparatively  rare.  The  former  rule,  that  the 
children  should  take  the  condition  of  the  mother,  which 
was  everywhere  adopted  by  custom  from  the  beginning, 
not  only  relieved  the  system  from  check,  but  even  gave 
it  an  added  horror,  of  which  the  variations  in  color  among 
the  inferior  race  are  mute  but  indelible  certificates. 

In  summarizing  the  introduction  of  slavery  into  the 
original   thirteen    States,    we  will  begin   at  Mason  and  , 
Dixon's  line,  going  first  southward,  and  then  northward : 
its  introduction  into  the  new  States  and  Territories  comes 
under  the  fifth  subdivision. 

In  Virginia  the  acts  passed  were  at  first  for  the  mere"7 
regulation  of  servants,  the  legal  distinction  being  between 
servants  for  a  term  of  years  (white  immigrants  under  in- 
dentures), and  servants  for  life  (slaves).  December  14, 
1662,  the  civil  law  rule,  partus  sequitur  ventrem,  was 
adopted  by  statute.  October  3,  1670,  servants  not  Chris- 
tians, imported  by  shipping,  were  declared  slaves  for  their 
lives.  Slavery  was  thus  fully  legalized  in  the  Colony. 

In  Maryland  slaves  are  first  mentioned  ("slaves  only 
excepted  ")  in  a  proposed  law  of  1638.  In  1663,  the  civil 
law  rule  was  fully  adopted  by  a  provision  that  "negroes 
or  other  slaves,"  then  in  the  province  or  thereafter  im- 
ported, should  serve  durante  vita,  "and  their  children 
also." 

In  Delaware  the  Swedes  at  first  prohibited  slavery,  but 
it  was  introduced  by  the  Dutch.  It  was  in  existence 
probably  in  1636;  but  its  first  legal  recognition  was  in 
1721,  in  an  act  providing  for  the  trial  of  "negro  and 
mulatto  slaves"  by  two  justices  and  six  freeholders. 
With  this  exception  the  system  rested  wholly  on  custom 
in  Delaware. 

In  Carolina,  under  the  first  union  of  the  two  provinces, 
the  Locke  constitution  provided  practically  for  white 
slavery:  the  "leetmen,"  or  tenants  of  ten  acres,  were  to 
be  fixed  to  the  soil  under  the  jurisdiction  of  their  lord 


4  The  Slavery  Controversy 

without  appeal ;  and  the  children  of  leetmen  were  to  be 
leetmen,  "and  so  to  all  generations."  This  provision, 
like  most  of  the  others,  was  never  respected  or  obeyed. 
The  uoth  article  provided  that  every  freeman  should 
have  "absolute  power  and  authority  over  his  negro  slaves 
of  what  opinion  or  religion  soever."  This  met  with 
more  respect,  and  became  the  fundamental  law  of  North 
Carolina  without  anything  further  than  statutes  for  police 
regulation. 

In  South  Carolina  the  first  slavery  legislation,  an  act 
of  February  7,  1690,  "for  the  better  ordering  of  slaves," 
took  place  before  the  separation.  Slaves  are  said  to 
have  been  introduced  by  Governor  Yeamans  about  1670. 
June  7,  1712,  slavery  was  formally  legalized  by  an  act 
declaring  all  negroes  and  Indians,  theretofore  sold  or 
thereafter  to  be  sold,  and  their  children,  "slaves  to  all 
intents  and  purposes."  The  civil  law  rule  was  made  law 
May  10,  1740.  The  police  regulations  of  this  Colony 
were  filled  with  cruel  provisions,  such  as  the  gelding  of  a 
male  slave  who  should  run  away  for  the  fourth  time ;  and 
yet  an  act  was  passed  in  1704,  and  re-enacted  in  1708, 
for  enlisting  and  arming  negro  troops. 

In  Georgia  slavery  was  prohibited  at  the  establishment 
of  the  Colony,  in  1732.  In  1749,  after  repeated  petitions 
from  the  colonists,  the  trustees  obtained  from  Parliament 
the  repeal  of  the  prohibition.  In  1755  the  legislature 
passed  an  act  regulating  the  conduct  of  slaves;  and  in 
1765  and  subsequent  years  the  laws  of  South  Carolina 
were  re-enacted  by  Georgia. 

In  Pennsylvania  slavery  is  first  heard  of  in  1688,  when 
Francis  Daniel  Pastorius  drew  up  a  memorial  against  the 
practice  for  the  Germantown  Quakers.  It  was  not  until 
1696  that  the  Quaker  yearly  meeting  was  prepared  to  act 
favorably  on  the  memorial.  In  1700  the  legislature  for- 
bade the  selling  of  slaves  out  of  the  province  without 
their  consent.  The  other  slavery  legislation  of  the  Colony 


Slavery  in  the  United  States  5 

consisted  of  efforts,  more  or  less  successful,  to  check  or 
abolish  the  slave  trade ;  but  as  soon  as  independence  was 
fairly  attained,  arrangements  were  made  for  gradual  abo- 
lition. So  late  as  1795,  however,  the  State  Supreme 
Court  decided  that  slavery  was  not  inconsistent  with  the 
State  constitution. 

In  New  Jersey  slavery  was  introduced  by  the  Dutch, 
but  was  not  recognized  by  law  until  the  "concessions" 
of  1664,  in  which  the  word  "slaves"  occurs.  In  East 
Jersey  slaves  were  given  trial  by  jury  in  1694;  and  in 
West  Jersey  the  word  "slave"  was  omitted  from  the 
laws.  Acts  for  regulating  the  conduct  of  slaves  began 
with  the  junction  of  the  province  with  New  York,  in 
1702;  but  these  were  never  harsh,  and  the  condition  of 
the  slave  was  more  tolerable  than  in  any  other  Colony 
where  the  system  was  really  established. 

In  New  York  slavery  came  in  with  the  Dutch  at  an 
uncertain  period,  the  Dutch  West  India  Company  sup- 
plying the  slaves.  So  early  as  1628  the  inhabitants  were 
made  nervous  by  the  mutinous  behavior  of  some  of  the 
slaves,  but  there  was  no  legal  recognition  of  slavery  until 
1665,  when  the  Duke  of  York's  laws  forbade  "slavery  of 
Christians,"  thus  by  implication  allowing  slavery  of 
heathens.  Full  recognition  was  given  by  a  proviso  in 
the  naturalization  act  of  1683,  that  it  should  not  operate 
to  free  those  held  as  slaves,  and  by  an  act  of  1706,  to 
allow  baptism  of  slaves  without  freeing  them. 

In  Connecticut  slavery  was  never  directly  established 
by  statute,  and  the  time  of  its  introduction  is  uncertain. 
In  1680  the  Governor  informed  the  board  of  trade  that, 
"as  for  blacks,  there  come  sometimes  three  or  four  in  a 
year  from  Barbadoes,  and  they  are  sold  usually  at  the 
rate  of  ^"22  apiece."  They  were  considered  as  servants, 
rather  than  as  chattels,  could  sue  their  masters  for  ill- 
treatment  or  deprivation  of  property,  and  the  only  legal 
recognition  of  slavery  was  in  such  police  regulations  as 


6  The  Slavery  Controversy 

that  of  1690,  to  check  the  wandering  and  running  away 
of  "purchased  negro  servants." 

Rhode  Island  passed  the  first  act  for  the  abolition  of 
slavery  in  our  history,  May  19,  1652.  In  order  to  check 
"the  common  course  practiced  among  Englishmen  to 
buy  negers  [sic]"  the  act  freed  all  slaves  brought  into  the 
province  after  ten  years'  service.  Unfortunately,  the  act 
was  never  obeyed ;  custom  was  too  strong  for  statute  law, 
and  slavery  existed  without  law  until  the  final  abolition. 
The  only  legal  recognition  of  the  system  was  in  a  series 
of  acts,  beginning  January  4,  1703,  to  control  the  wander- 
ing of  Indian  and  negro  slaves  and  servants,  and  another, 
beginning  in  April,  1708,  in  which  the  slave  trade  was  in- 
directly legalized  by  being  taxed. 

In  Massachusetts  a  negro  is  mentioned  in  1633,  as  an 
estray,  "conducted  to  his  master. "  In  1636  a  Salem  ship 
began  the  importation  of  negro  slaves  from  the  West 
Indies,  and  thereafter  Pequot  slaves  were  constantly  ex- 
changed for  Barbadoes  negroes.  In  1641  the  fundamental 
laws  forbade  slavery,  with  the  following  cautious  proviso : 
"unless  it  be  lawful  captives  taken  in  just  wars  [Pequots], 
and  such  strangers  as  willingly  sell  themselves  [probably 
indentured  white  immigrants]  or  are  sold  to  us  [negroes]." 
The  explanations  inserted  will  show  that  this  was  the  first 
legal  recognition  of  slavery  in  any  Colony.  Under  it 
slavery  grew  slowly,  and  the  rule  of  partus  sequitur  ven- 
trem  was  established  by  custom  and  court  decisions. 
Public  sentiment,  after  the  year  1700,  was  slowly  de- 
veloped against  the  system.  In  December,  1766,  a  jury 
gave  a  negro  woman  £4  damages  against  her  master  for 
restraining  her  of  her  liberty.  John  Adams  notes  at  the 
time  that  this  was  the  first  case  of  the  kind  he  had  known, 
though  he  heard  that  there  had  been  many.  In  1768 
another  case  was  decided  for  the  master,  and  thereafter 
the  decisions  of  juries  varied  to  every  point  of  the  com- 
pass for  twenty  years ;  but  it  is  known  that  many  of  the 


Slavery  in  the  United  States  (j> 

cases  in  which  the  slaves  were  successful  were  gained  by 
connivance  of  the  masters,  in  order  to  relieve  themselves 
of  the  care  of  aged  or  infirm  slaves.  John  Quincy  Adams 
gives  1787  as  the  year  in  which  the  State  Supreme  Court 
finally  decided  that,  under  the  constitution  of  1780,  a 
man  could  not  be  sold  in  Massachusetts. 

In  New  'Hampshire  there  were  but  two  legal  recog- 
nitions of  slavery,  an  act  of  1714  to  regulate  the  conduct 
of  "Indian,  negro  and  mulatto  servants  and  slaves"  ;  and 
another  in  1718  to  regulate  the  conduct  of  masters. 
There  were  but  few  slaves  in  the  Colony,  and  slavery  had 
but  a  nominal  existence. 

Vermont  never  recognized  slavery.1 

From  all  the  cases  it  will  l>e  seen  that  slavery  was  the 
creature  of  custom.  The  only  exceptions  are  a  peculiar 
provision  in  the  law  of  Maryland  (1663)  and  Pennsylvania 
(1725-6)  making  the  children  of  free-born  mothers  and 
slave  fathers  slaves  to  their  father's  master  until  the  age 
of  thirty ;  and  the  laws  in  a  few  States  re-enslaving  freed- 
men  who  refused  or  neglected  to  leave  the  State.  This 
latter  provision  was  the  law  of  Virginia  from  1705,  and 
was  put  into  the  State  constitution  in  1850;  and  laws 
fully  equivalent  were  passed  during  their  State  existence 
by  North  Carolina,  South  Carolina,  Georgia,  Alabama, 
Mississippi,  and  Louisiana.  In  the  white  heat  of  the  anti- 
slavery  struggle,  laws  were  passed  by  Virginia  in  1856, 
by  Louisiana  in  1859,  anc^  by  Maryland  in  1860,  providing 
for  the  voluntary  enslavement  of  free  negroes ;  but  these 
were  exceptional.  Milder  provisions,  to  the  same  gen- 
eral effect,  to  punish  by  fine  or  sale  the  coming  or  re- 
maining of  free  negroes  in  the  State,  were  inserted  in  the 
constitution  of  Missouri  in  1820,  of  Texas  in  1836  (as  a 
republic),  of  Florida  in  1838,  of  Kentucky  in  1850,  of 
Indiana  in  1851,  and  of  Oregon  in  1857. 

The  most  troublesome  to  the  Northern  States  were  the 

1  See  Abolition,  I. 


The  Slavery  Controversy 

regulations  of  the  seaboard  slave  States,  under  which 
negro  seamen  of  Northern  vessels  were  frequently  im- 
prisoned, and  sometimes  sold.  In  1844  Massachusetts 
sent  Samuel  Hoar  to  Charleston  to  bring  an  amicable 
suit  there  for  the  purpose  of  testing  the  constitutionality 
of  the  South  Carolina  act.  He  was  received  in  a  very 
unfriendly  fashion.  The  Legislature  passed  resolutions 
requesting  the  Governor  to  expel  him  from  the  State, 
and  an  act  making  any  such  mission  a  high  misdemeanor, 
punishable  by  fine  and  banishment.  Finally,  on  receiv- 
ing unequivocal  assurances  of  personal  violence  if  he  re- 
mained, Mr.  Hoar  left  Charleston  without  fulfilling  his 
mission. 

However  strongly  custom  may  have  established  negro 
slavery  in  the  Colonies,  it  has  been  suggested  that  the 
validity  of  the  system  was  at  least  made  doubtful  by  the 
Sommersett  case  in  England.  In  that  country,  in  1677, 
the  courts  held  negro  slaves  to  be  property,  as  "being 
usually  bought  and  sold  among  merchants  as  merchan- 
dise, and  also  being  infidels."  In  1750  custom  had  so 
far  changed  that  the  law  was  again  in  doubt. 

In  1771  Charles  Stewart,  of  Boston,  took  his  slave 
James  Sommersett  to  London,  where  the  latter  fell  sick, 
and  was  sent  adrift  by  his  master.  Stewart,  afterward 
finding  Sommersett  recovered,  reclaimed  him  and  put 
him  on  a  ship  in  the  Thames,  bound  for  Jamaica.  Lord 
Mansfield  issued  a  writ  of  habeas  corpus,  and  decided, 
June  22,  1772,  that  the  master  could  not  compel  his 
slave  to  leave"Eriglarid",  whose  laws  did  not  recognize  "so 
high  an  act  of  dominion."  If  the  Colonies,  by  charter 
and  otherwise,  were  forbidden  to  pass  laws  contrary  to 
the  laws  of  England,  and  if  the  laws  of  England  did  not 
recognize  slavery,  was  slavery  legal  in  the  Colonies? 

It  must  be  remembered  that  the  Sommersett  decision 
was  not  that  the  laws  of  England  forbade  slavery,  but 
that  there  was  no  law  in  England  establishing  slavery. 


Slavery  in  the  United  States 

There  was  no  attempt  to  make  an  English  custom  over- 
ride an  American  custom,  and  we  cannot  draw  any  attack 
on  the  American  system  of  slavery  out  of  the  Sommersett 
case. 

The  Colonies,  then,  began  their  forcible  struggle  against    7 
the  mother  country  with  a  system  of  negro  slavery,  rec- 
ognized everywhere  by  law,  moribund  in  the  North,  but  / 
full  of  vigor  in  the  South.     In  the  NorthJ  where  there  J. 
was  a  general  consciousness  that  slavery  was  doomed, 
the  slaves  were  generally  regarded  as  servants  for  life,  as 
persons  whose  personality  was  under  suspension.     In  the 
South  they  were  regularly  regarded  by  the  law  and  by 
private  opinion  as  things,  as  chattels, 'with  "no  rights  or 
privileges  but  such  as"  those  who  held  the  power  and  the 
government  might  choose  to  grant  them,"  with  all  the 
consequences  arising  from  the  fact  that  they  had  not 
come  to  America  voluntarily,  as  persons,  but  involun- 
tarily, as  property.     In  so  far  the  Dred  Scott  decision 
correctly  stated  the  feeling  of  our  forefathers. 

But  the  feeling  was  in  a  great  measure  a  consequence 
of  the  unfortunate  adoption  of  the  rule  partus  sequitur 
ventrem :  a  race  to  which  the  rule  was  applied  could  be 
no  other  than  animal,  and  a  people  among  whom  the  rule 
prevailed  could  never  be  emancipated  from  the  feeling. 
For  this  reason  the  Revolutionary  Congress  made  no  at- 
tempt to  interfere  with  slavery,  except  in  regard  to  the 
slave  trade,  to  be  referred  to  hereafter. 

The  state  of  war  itself  did  little  real  harm  to  the  sys- 
tem^- In  Virginia,  November  7,  1775,  Lord  Dunmore 
proclaimed  freedom  to  all  slaves  who  would  fight  for  the 
King,  and  negro  soldiers  were  enlisted  by  Massachusetts, 
Connecticut,  Rhode  Island,  New  York,  Pennsylvania, 
Maryland,  Virginia,  and  North  Carolina.  South  Caro- 
lina refused  to  follow  the  recommendation  of  Congress, 
in  1779,  to  enlist  three  thousand  negro  troops.  A  return 
of  the  Continental  army,  August  24,  1778,  shows  755 


(y  The  Slavery  Controversy 

negro  soldiers,  not  including  the  New  Hampshire,  Rhode 
Island,  Connecticut,  or  New  York  troops.  At  the  end 
of  the  war  Rhode  Island,  New  York,  and  Virginia  freed 
their  negro  soldiers,  but  the  system  remained  as  before. 
The  treaty  of  peace  bound  the  British  not  to  carry  away 
any  "negroes  or  other  property  of  the  American  inhabi- 
tants " ;  and  this  collocation  of  terms  is  repeated  in  the 
treaty  of  Ghent  in  1814. 

All  through  the  period  of  the  Confederation,  slavery 
received  no  detriment,  except  in  the  action  of  individual 
States,1  and  in  its  exclusion  from  the  Northwest  Territory, 
to  be  referred  to  hereafter.  The  States  and  the  nation 
began  their  course  under  the  Constitution  with  the  same 
general  system  as  before,  but  with  three  modifications: 
the  apportionment  of  representation  to  three-fifths  of  the 
slaves ;  the  power  of  Congress  to  prohibit  the  slave  trade 
after  1808;  and  the  fugitive  slave  clause. 

The  first  of  these  made  the  system  of  slavery  itself  a 
political  factor,  represented  in  the  government;  the  third 
offered  a  tempting  and  dangerous  weapon  to  use  against 
an  opposing  section ;  and  the  second  was  the  death  war- 
rant of  the  whole  system  in  the  double  event  of  the 
acquisition  of  foreign  territory  and  the  development  of 
antagonistic  sections.  They  are  therefore  treated  in 
special  subdivisions. 

Until  this  time  the  difference  in  the  slave  systems  of 
the  North  and  of  the  South  had  been  a  difference  of  de- 
gree rather  than  of  kind.  The  basis  and  the  general  laws 
were  nominally  the  same  everywhere ;  and  there  was  a 
general  agreement  that  the  system  was  evil  in  itself,  and 
that  it  was  desirable  to  rid  the  country  of  it  by  gradual 
abolition.  But,  from  the  beginning,  the  masterful  white 
race  had  found,  in  the  colder  North,  that  it  was  easier  to 
do  work  for  itself  than  to  compel  work  from  the  black 
race,  and,  in  the  warmer  South,  that  it  was  easier  to 

1  See  Abolition,  I. 


Slavery  in  the  United  States         (^n 

compel  work  from  the  black  race  than  to  do  the  work  for 
itself.  In  both  sections  the  ruling  race  followed  naturally 
the  line  of  least  resistance,  and  negro  slavery  increased  in 
the  South,  and  decreased  in  the  North. 

The  process  may  be  seen  in  the  number  of  slaves  in  the 
Colonies  north  and  south  of  Mason  and  Dixon's  line,  as 
estimated  by  the  royal  governors  in  1715,  as  estimated  by 
Congress  in  1775,  and  as  ascertained  by  the  first  census, 
in  1790,  as  follows:  North,  (1715)  10,900,  (1775)46,102, 
(1790)40,370;  South,  (1715)47,950,  (1775)455,000,  (1790) 
657,527.  Before  1790  the  two  sections  had  begun  to 
show  the  contrasting  results  of  pushing,  self-interested 
free  labor  on  the  one  hand,  and  shiftless,  unwilling  slave 
labor  on  the  other. 

Gouverneur  Morris,  in  the  convention  of  1787,  thus 
spoke  of  slavery  at  the  time : 

"  It  was  the  curse  of  Heaven  on  the  States  where  it  pre- 
vailed. Travel  through  the  whole  continent  and  you  behold 
the  prospect  continually  varying  with  the  appearance  and  dis- 
appearance of  slavery.  The  moment  you  leave  the  eastern 
States  and  enter  New  York,  the  effects  of  the  institution 
become  visible.  Passing  through  the  Jerseys,  and  entering 
Pennsylvania,  every  criterion  of  superior  improvement  wit- 
nesses the  change.  Proceed  southwardly,  and  every  step  you 
take  through  the  great  regions  of  slaves  presents  a  desert,  in- 
creasing with  the  increasing  proportion  of  these  wretched 
beings." 

Nor  was  the  assertion  denied  by  the  Southerners  who 
heard  it.  George  Mason,  of  Virginia,  said : 

"  Slavery  discourages  arts  and  manufactures.  The  poor 
despise  labor  when  performed  by  slaves.  They  prevent  the 
emigration  of  whites,  who  really  enrich  and  strengthen  a. 
country.  They  produce  the  most  pernicious  effect  on  man- 
ners. Every  master  of  slaves  is  born  a  petty  tyrant.  They 


The  Slavery  Controversy 

bring  the  judgment  of  Heaven  on  a  country.  As  nations  can- 
not be  rewarded  or  punished  in  the  next  world,  they  must  be 
in  this.  By  an  inevitable  chain  of  causes  and  effects  Provi- 
dence punishes  national  sins  by  national  calamities." 

And  Jefferson,  in  the  same  year,  after  detailing  the  evils 
of  slavery,  added:  "Indeed,  I  tremble  for  my  country 
when  I  reflect  that  God  is  just,  and  that  his  justice  can- 
not sleep  forever."  But  this  substantial  agreement  in 
sentiment  was  very  soon  to  be  broken  by  an  event  which 
entirely  altered  the  paths  of  the  two  sections. 

Few  influences  have  so  colored  the  history  of  the 
United  States  and  of  negro  slavery  as  the  inventions  of 
1775-93  in  England  and  America.  In  1775  Crompton's 
invention  of  the  mule  jenny  superseded  Hargreaves's 
spinning  machine;  in  1783  Watt's  steam-engine  was 
adapted  to  the  spinning  and  carding  of  cotton  at  Man- 
chester; in  1785  cylinder  printing  of  cottons  was  in- 
vented; and  in  1786-8  the  use  of  acid  in  bleaching  was 
begun.  All  the  machinery  of  the  cotton  manufacture 
was  thus  standing  ready  for  material.  Very  little  had 
thus  far  come  from  the  United  States,  for  a  slave  could 
clean  but  five  or  six  pounds  a  day  for  market.  In  1784 
an  American  ship  which  brought  eight  bags  of  cotton  to 
Liverpool  was  seized  on  the  ground  that  so  much  of  the 
article  could  not  be  the  produce  of  the  United  States; 
and  Jay's  treaty  (see  that  title)  at  first  consented  that  no 
cotton  should  be  exported  from  America. 

[In  1793,  Eli  Whitney,  of  Connecticut,  then  residing  in 
Georgia,  changed  the  history  of  the  country  by  his  in- 
vention of  the  saw-gin,  by  which  one  slave  could  cleanse 
one  thousand  pounds  of  cotton  from  its  seeds  in  a  day. 
He  was  robbed  of  his  invention,  which  the  excited 
planters  instantly  appropriated ;  and  slavery  ceased  to  be 
a  passive,  patriarchal  institution,  and  became  a  means  of 
gain,  to  be  upheld  and  extended  by  its  beneficiaries. 


Slavery  in  the  United  States 

The  export  of  cotton,  which  had  fallen  from  189,316 
pounds  in  1791  to  138,328  in  1792,  rose,  to  487,600  in 
1793,  to  1,601,760  in  1794,  to  6,276,300  in  1795,  and  to 
38,118,041  in  1804. 

Within  five  years  after  Whitney's  invention  cotton  had 
displaced  indigo  as  the  great  Southern  staple,  and  the 
slave  States  had  become  the  cotton  field  of  the  world. 
In  1859  the  export  was  1,386,468,562  pounds,  valued  at 
$161,434,923,  and  the  next  largest  export  (tobacco)  was 
valued  at  but  $21,074,038.  Was  it  wonderful  that 
Southerners  should  say  and  believe  that  "cotton  is 
king,"  and  that  secession  could  never  be  attacked  by 
blockade,  since  the  great  commercial  nations,  even  the 
free  States  themselves,  would  not  thus  allow  themselves 
to  be  deprived  of  the  raw  material  of  manufacture?  The 
reader  may  judge  the  reasonableness  of  the  belief,  and 
the  magnitude  of  the  temptations  to  English  interven- 
tion, by  the  value  of  the  English  imports  of  cotton  from 
the  United  States  and  elsewhere,  1861-3,  and  the  coinci- 
dent rise  in  price:  imports  from  the  United  States,  (1861) 
$132,851,995,  (1862)  $6,106,385,  (1863)  $2,300,000;  from 
other  countries,  (1861)  $65,034,990,  (1862)  $148,358,840, 
(1863)  $213,700,000;  price  per  lb.,  (1861)  7  cents,  (1862) 
13!  cents,  (1863)  27^  cents. 

From  a  purely  commercial  and  agricultural  venture  the 
cotton  culture  had  taken  a  different  aspect.  Those  who 
controlled  it  felt  very  much  the  same  importance  as  a 
man  might  feel  who  had  gained  control  of  the  magazine 
of  a  man  of  war,  and  could  threaten  to  blow  up  the  whole 
ship  if  he  should  be  interfered  with  in  any  way. 

This  development  of  the  culture  of  cotton  was  preg- 
nanTwith  consequences  to  both  sections.  In  the  North, 
manufactures  and  commerce  were  developed,  and  the 
remnants  of  slavery  slid  to  extinction  down  a  steeper  and 
smoother  descent.  In  the  South,  the  price  of  slaves  was  \ 
steadily  increasing,  and  the  increased  profit  thus  indicated 


14  The  Slavery  Controversy 

was  steadily  stamping  labor  itself  as  slavery.  It  is  not 
in  financial  matters  alone  that  bad  money  drives  out 
good :  wherever  slave  labor  was  extended,  it  tended  con- 
stantly to  expel  free  labor  from  the  market.  Immigra- 
tion shunned  slave  soil  as  if  by  instinct,  and  it  was  not 
long  before  the  whole  population  of  the  slave  States  was 
divided  into  three  great  classes :  the  rich  whites,  who  did 
no  work ;  the  poor  whites,  who  knew  not  how  to  work ; 
and  the  slaves,  who  only  worked  when  compelled  to 
work. 

The  results  on  the  economical  development  of  the 
country  may  easily  be  imagined.  No  one  was  under  any 
special  incentive  to  work,  to  invent,  or  to  surpass  his 
neighbors;  slaves,  the  only  working  class,  could  not  be 
trusted  to  engage  in  any  labor  requiring  care  or  thought ; 
success  in  anything  higher  than  the  culture  of  cotton, 
tobacco,  or  sugar  meant  the  inevitable  freedom  of  the 
laborer;  and  long  before  1850  "Southern  shiftlessness  " 
had  become  chronic,  hopeless,  and  proverbial,  even  in  the 
South.  The  reader  who  wishes  for  details  will  find  them 
(from  the  census  of  1850)  in  von  Hoist's  third  volume, 
or  in  Sumner's  speech  of  June,  1860,  as  cited  below;  and 
an  instructive  description  of  affairs  in  1860  is  in  Olm- 
stead's  two  volumes. 

Even  on  the  culture  of  the  soil  the  influence  of  the 
slave  system  was  for  evil.  Only  free  labor  can  get  large 
profits  from  a  small  surface,  and  the  unwilling  and  unin- 
telligent labor  of  slaves  required  so  much  larger  area  for 
its  exercise  that  in  1850  there  were  to  the  square  mile 
only  18.93  inhabitants  in  the  Southern  States  to  45.8  in 
the  Northern  States. 

Slavery,  like  Tacitus's  Germans,  demanded  empty 
acres  all  around  it.  In  1860  the  acreage  of  improved  to 
unimproved  lands  in  Virginia  was  11,437,821  to  19,679,- 
215 ;  in  North  Carolina,  6,517,824  to  17,245,685  ;  in  South 
Carolina,  4, 572,060  to  11,623,859;  and  in  Georgia,  8,062,- 


Slavery  in  the  United  States  15 

758  to  18,587,732.  The  older  slave  States  have  been 
selected;  in  the  new  slave  States  the  comparison  is 
equally  or  more  unfavorable.  In  the  old  free  State  of 
New  York  the  comparison  stood  14,358,403  improved  to 
6,616,555  unimproved;  in  the  new  free  State  of  Illinois, 
13,096,374  to  7,815,615.  Of  the  free  States,  all  but  Cali- 
fornia, Iowa,  Maine,  Michigan,  Minnesota,  Oregon,  and 
Wisconsin  had  more  improved  than  unimproved  land  in 
farms;  of  the  slave  States,  only  Delaware  and  Maryland. 

The  comparison  of  the  price  of  lands  is  still  more  un- 
favorable to  slavery,  varying  in  such  near  neighbors  as 
Pennsylvania  and  Virginia  from  $25  per  acre  in  the  former 
to  $8  per  acre  in  the  latter.  The  average  value  of 
Northern  farms  in  1860  was  $29  an  acre;  of  Southern 
farms,  $9.80. 

This  constant  necessity  for  elbow  room  for  slave  labor 
was  the  ground  reason  for  its  constant  effort  to  stretch 
out  after  new  territory. 

A  planter's  policy  was  to  take  up  as  much  land  as 
possible,  scratch  the  surface  until  his  slaves  could  or 
would  extract  no  more  from  it,  and  then  search  for  virgin 
soil ;  for  it  was  cheaper  to  pass  the  Mississippi,  or  invade 
Texas,  than  to  cultivate  a  worn-out  farm  with  slave  labor. 
Scientific  agriculture,  and  the  revivification  of  so-called 
worn-out  farms,  were  never  attempted  until  the  over- 
throw of  slavery;  and,  since  they  have  begun,  we  hear 
no  more  of  the  need  for  new  territory  for  cotton. 

The  influence  of  slavery  upon  the  section  in  which  it 
existed  was  particularly  evil  in  regard  to  the  possibilities 
of  warfare.  Not  only  did  it  throttle  commerce,  manu- 
factures, literature,  art,  everything  which  goes  to  make  a 
people  independent  of  the  rest  of  the  world :  its  influence 
in  checking  the  natural  increase  of  fighting  men  is  plainly 
perceptible  in  the  decennial  census  tables.  Even  when 
there  is  an  apparent  equality  of  numbers  between  the  two 
sections,  the  equality  is  delusive,  so  long  as  the  Southern 


16 


The  Slavery  Controversy 


scale  is  partly  filled  with  a  population  not  only  non- 
combatant  but  actually  to  be  distrusted  as  possibly 
hostile.  For  this  reason,  in  the  following  table,  taking 
separately  the  States  which  were  free  and  slave  in  1860, 
the  population  of  the  free  States  is  given  first,  then  the 
population  of  the  slave  States  (excluding  slaves),  and 
finally  the  slaves. 


1790 

1800 

1810 

1820 

North  

I  068  O4O 

2,684,616 

3  7<i8  QIO 

:  IC2  372 

South  

i  303  64.7 

I  764  211 

2  117  O48 

2  066  089 

Slaves  

6<;7  527 

8<?7  IOS 

I.l63  8^4 

I  5l8  930 

1830 

1840 

1850 

1860 

North  

7  006  3QQ 

9733  Q22 

13  5QQ  488 

ig  128  418 

South  

3  84.2  84.1 

4  848  IO7 

6  4"?Q  046 

8  361  848 

Slaves  

2,OO'?.46Q 

2  486.326 

3  2O4  O<il 

3  0^3  "^24 

Whatever  causes  may  be  assigned  to  explain  the  growing 
disproportion  of  free  population  and  fighting  men  of  the 
two  sections,  it  is  evident  that  the  slave  States  were  worse 
fitted  at  the  end  of  each  successive  period  for  a  forcible 
struggle  with  the  free  States,  and  that  the  sceptre  was 
departing  from  the  South. 

It  is  not  proposed  in  this  article  to  touch  on  the  moral 
aspect  of  slavery,  or  the  absurd  biblical  arguments  for 
and  against  it :  the  rigid  application  of  the  partus  sequitur 
ventrem  rule,  combined  with  the  material  interests  of  the 
cotton  monopoly,  will  absolutely  distinguish  negro  slavery 
in  the  United  States  from  every  system  that  has  pre- 
ceded it. 

We  may  summarize  the  economical  evils  of  the  system, 
in  those  points  which  no  one  can  dispute,  in  a  few  words. 
It  paralyzed  invention  and  commerce ;  it  prevented  manu- 


Slavery  in  the  United  States  17 

factures  and  the  general  introduction  of  railroads,  steam 
machinery,  or  improved  agricultural  implements;  it  de- 
graded labor  by  white  as  well  as  by  black  men ;  it  stunted 
all  the  energies  of  the  people,  and  deprived  them  of  those 
physical  comforts  which  were  regarded  elsewhere  as  al- 
most necessaries;  it  dwarfed  the  military  ability  of  the 
people,  at  the  same  time  that  it  increased  the  military 
ambition  of  the  ruling  class,  and  kept  the  poor  whites  so 
ignorant  that  to  them  their  State  was  a  universe,  its  will 
sovereign,  and  its  power  irresistible.  Every  year  in- 
creased the  pile  of  explosives  in  the  Southern  territory, 
and  yet  the  force  of  events  compelled  slavery  to  grow 
more  aggressive  as  it  grew  really  weaker  for  war. 

That  a  people  so  situated,  with  no  resources  of  their 
own  and  with  little  power  to  draw  from  without,  should 
have  waged  the  final  war  as  they  did,  is  almost  enough 
to  hide  in  the  glory  of  their  defeat  the  evil  thing  that 
went  down  with  them. 

The  enormous  strides  of  the  Southern  States  from  1870 
until  1880  show  what  the  same  people  can  do  under  free 
labor,  and  nearly  all  Southern  writers  are  agreed  that  the 
South  was  the  greatest  gainer  by  the  overthrow  of  sla- 
very. President  Haygood,  of  Georgia,  in  a  thanksgiving 
sermon  of  1880,  says: 

"  For  one  illustration,  take  the  home  life  of  our  people. 
There  is  ten  times  the  comfort  there  was  twenty  years  ago. 
Travel  through  your  own  country — and  it  is  rather  below  than 
above  the  average — by  any  public  or  private  road.  Compare 
the  old  and  the  new  houses.  Those  built  recently  are  better 
in  every  way  than  those  built  before  the  war.  I  do  not  speak 
of  an  occasional  mansion  that  in  the  old  times  lifted  itself 
proudly  among  a  score  of  cabins,  but  of  the  thousands  of  de- 
cent farmhouses  and  comely  cottages  that  have  been  built  in 
the  last  ten  years.  I  know  scores  whose  new  barns  are  better 
than  their  old  residences.  Our  people  have  better  furniture. 
Good  mattresses  have  largely  driven  out  the  old-time  feathers. 

VOL.  II.— 3. 


The  Slavery  Controversy 

Cook-stoves,  sewing-machines,  with  all  such  comforts  and  con- 
veniences, may  be  seen  in  a  dozen  homes  to-day,  where  you 
could  hardly  have  found  them  in  one  in  1860.  Lamps,  that 
make  reading  agreeable,  have  driven  out  the  tallow  dip,  by 
whose  glimmering  no  eyes  could  long  read  and  continue  to  see. 
Better  taste  asserts  itself:  the  new  houses  are  painted;  they 
have  not  only  glass,  but  blinds.  There  is  more  comfort  in- 
side. There  are  luxuries  where  once  there  were  not  con- 
veniences. Carpets  are  getting  to  be  common  among  the 
middle  classes.  There  are  parlor  organs,  pianos,  and  pictures 
where  we  never  saw  them  before.  And  so  on,  to  the  end  of 
a  long  chapter.  There  are  more  people  at  work  in  the  South 
to-day  than  were  ever  at  work  before ;  and  they  are  raising  not 
only  more  cotton,  but  more  of  everything  else.  And  no  won- 
der, for  the  farming  of  to-day  is  better  than  the  farming  of  the 
old  days,  first,  in  better  culture,  second,  in  the  ever-increasing 
tendency  to  break  up  the  great  plantations  into  small  farms. 
Our  present  system  is  more  than  restoring  what  the  old  system 
destroyed. ' ' 

II.  THE  SYSTEM  INTERNALLY. — The  Louisiana  civil 
code  (Art.  35),  thus  defines  a  slave:  "One  who  is  in  the 
power  of  a  master  to  whom  he  belongs.  The  master 
may  sell  him,  dispose  of  his  person,  his  industry  and  his 
labor;  he  can  do  nothing,  possess  nothing,  nor  acquire 
anything  but  what  must  belong  to  his  master."  This 
comprehensive  definition  will  show  the  status  of  the  slave 
and  the  rights  of  the  master  sufficiently  to  obviate  the 
necessity  of  any  full  statement  of  the  slave  laws  of  the 
States.  For  these  the  reader  is  referred  to  the  authorities 
cited  below. 

As  slavery  rested  on  custom,  its  regulation  was  uni- 
formly by  statute,  the  constitution  usually  ignoring  it, 
and  leaving  it  wholly  in  the  power  of  the  legislature. 
Slavery  was  never  mentioned  in  the  State  constitutions 
of  Delaware,  Maryland  (until  1837),  Virginia  (until  1850), 
North  Carolina  (except  a  mere  mention  of  slaves  in  1835,) 


Slavery  in  the  United  States 

South   Carolina   (except  a  qualification  of   negroes  for 
membership  in  the  legislature  in  1790),  or  Louisiana. 

In  the  new  States  slavery  was  legalized  by  that  pro- 
vision of  their  constitutions  which  forbade  the  legislature  I 
to  emancipate  slaves  without  consent  of  their  owners,  or 
to  prevent  immigrants  from  bringing  their  slaves  into 
the  State:  such  provisions  were  inserted  by  Kentucky 
in  1792,  Georgia  in  1798,  Mississippi  in  1817,  Alabama  in 
1819,  Missouri  in  1820,  Tennessee  in  1834,  Arkansas  in 
1836,  Maryland  in  1837,  Florida  in  1838,  Texas  in  1836 
and  1845,  and  Virginia  in  1850;  and  these  continued  in 
force  until  the  final  abolition  of  slavery.  Trial  by  jury 
for  crimes  above  the  grade  of  petit  larceny  was  secured 
to  the  slave  by  the  constitutions  of  Kentucky  in  1799, 
Mississippi  in  1817,  Alabama  in  1819,  Missouri  in  1820, 
and  Texas  in  1845,  and  by  various  statutes  in  Georgia, 
Tennessee,  North  Carolina,  and  Maryland,  but  was  denied 
in  any  case  in  South  Carolina,  Virginia,  and  Louisiana. 

There  were  also  provisions  in  most  of  the  States  for 
the  punishment  of  the  wilful  and  deliberate  murder  of  a 
slave.  The  benefit  of  both  these  provisions,  however, 
was  largely  nullified  by  the  universal  rules  of  law  that  a 
negro's  testimony  could  not  be  received  against  a  white 
man,  and  that  the  killing  of  a  slave  who  should  resist 
"'lawful  authority"  was  justifiable  homicide.  As  slavery 
grew  more  extensive  the  necessity  for  repressive  legisla- 
tion to  act  upon  the  slaves  became  more  pressing,  and 
the  slave  codes  more  severe,  until  every  white  person  felt 
himself  to  be  a  part  of  a  military  force  guarding  a  danger- 
ous array  of  prisoners.  Education  of  slaves  was  strictly 
forbidden,  though  this  provision  was  frequently  evaded 
or  disobeyed  in  individual  cases.  The  pass  system  was 
in  full  vigor  everywhere,  and  even  the  younger  girls  of 
the  master  race  did  not  hesitate  to  stop  a  strange  negro 
on  the  road,  examine  his  pass,  or  order  him  to  a  particu- 
lar house  for  examination.  It  was  a  strange  society, 


20  The  Slavery  Controversy 

always  on  the  alert,  always  with  its  hand  on  the  sword, 
and  cruel  and  evil  things  were  done  in  it.  The  burning 
of  negroes  as  a  punishment  for  heinous  offences  was  not 
an  uncommon  thing,  nor  was  it  by  any  means  the  most 
shocking  of  the  crimes  in  the  punishment  of  which 
George  Mason's  prophetic  words  of  1787  were  rigidly 
fulfilled. 

Many  of  the  evils  had  a  reflex  influence  upon  the  men 
of  the  dominant  race;  but  the  women,  shielded  from  per- 
sonal contact  with  most  of  the  evil,  and  trained  from 
childhood  in  the  daily  exercise  of  the  heroic  virtues,  de- 
veloped an  unusual  force  of  character,  to  which  much  of 
the  stubborn  endurance  of  the  war  was  due,  and  even 
more  of  the  sudden  rejuvenation  of  the  South  after  the 
war. 

\B_lack  Codes,  or  Black  Laws] — These  penal  laws  of  the 
slave  States  had  a  very  direct  influence  upon  the  legisla- 
tion of  several  of  the  free  States,  particularly  of  those  to 
which  there  had  been  a  large  Southern  migration.  Ohio, 
in  1803,  forbade  negroes  to  settle  in  the  State  without 
recording  a  certificate  of  their  freedom;  in  1807  passed 
an  act  denying  to  negroes  the  privilege  of  testifying  in 
cases  in  which  a  white  man  was  interested  on  either  side ; 
and  followed  this  up  by  excluding  them  from  the  public 
schools,  and  requiring  them  to  give  bonds  for  their  good 
behavior  while  residing  in  the  State.  In  1849  these 
' '  black  laws  ' '  were  repealed  as  a  part  of  the  bargain  be- 
tween the  Democrats  and  Free-Soilers. 

The  legislation  of  Illinois  in  1819,  1827,  and  1853  imi- 
tated that  of  Ohio,  and  in  1851  Indiana  inserted  similar 
provisions  in  her  State  constitution,  which  the  State 
courts,  in  1866,  held  to  be  void,  as  repugnant  to  the  Con- 
stitution of  the  United  States.  The  same  provisions 
were  adopted  by  Iowa  in  1851  by  statute,  and  were 
made  a  part  of  the  State  constitution  of  Oregon  in  1857. 
Wherever  the  State  constitutions  prescribed  conditions 


Slavery  in  the  United  States  21 

of  admission  to  the  militia,  as  in  Indiana  in  1816,  Illinois 
in  1818,  Iowa  in  1846,  Michigan  in  1850,  Ohio  in  1851, 
and  Kansas  in  1859,  negroes  were  excluded;  and  in  the 
States  where  the  composition  of  the  militia  was  left  to 
the  legislature  the  exclusion  was  as  fully  attained  by 
statute.  As  a  general  rule,  most  of  this  legislation  was 
swept  away  as  rapidly  as  the  Republican  party  obtained 
complete  control  of  each  State,  after  1856. 

Insurrections. — No  slave  race  has  organized  so  few  in- 
surrections as  the  negro  race  in  the  United  States.  This 
can  hardly  be  due  to  the  natural  cowardice  of  the  race, 
for  its  members  have  made  very  good  soldiers  when  well 
organized ;  nor  to  the  exceptional  gentleness  of  the  sys- 
tem, for  it  was  one  of  increasing  severity ;  nor  wholly  to 
the  affection  of  the  negroes  for  their  masters,  for  the 
great  plantation  system,  under  which  there  could  be  little 
affection  on  either  side,  had  been  fairly  established  in 
1860,  and  yet  there  was  no  insurrection  throughout  the 
Rebellion. 

It  is  encouraging  to  believe  that  the  race,  by  long  con- 
tact with  the  white  race,  has  imbibed  something  of  that 
respect  for  law  which  has  always  characterized  the  latter, 
so  that  the  negroes,  however  enterprising  when  backed 
by  the  forms  of  law,  patiently  submitted  to  legal  servi- 
tude. It  is  certain  that  revolt,  during  their  history  as 
slaves,  was  regularly  individual,  and  that  most  of  it  was 
only  revolt  by  legal  construction. 

In  1710  a  negro  insurrection  is  said  to  have  been 
planned  in  Virginia,  but  it  was  balked  by  one  of  the 
conspirators,  who  revealed  the  plot,  and  was  rewarded  by 
emancipation.  In  1740,  a  local  insurrection  broke  out  in 
South  Carolina,  but  it  was  stamped  out  instantly  by  the 
militia.  In  New  York  a  negro  plot  was  unearthed  in 
February  and  March,  1741,  and  as  a  consequence  of  the 
intense  popular  excitement  a  number  of  negroes  and 
whites  were  hung,  and  several  negroes  burned ;  but  the 


22  The  Slavery  Controversy 

whole  story  of  the  "conspiracy  "  seems  now  of  the  flim- 
siest possible  construction.  In  1820  Denmark  Vesey,  a 
St.  Domingo  mulatto,  organized  a  negro  insurrection 
in  Charleston.  It  was  revealed,  Vesey  and  thirty-four 
others  were  hung,  and  a  like  number  were  sold  out  of 
the  State.  In  August,  1831,  the  most  formidable  of  all 
the  insurrections  broke  out  in  Southampton  County, 
near  Norfolk,  Virginia,  led  by  Nat  Turner.  He  believed 
that  he  had  been  instructed  by  Heaven,  three  years  be- 
fore, to  rebel,  the  sign  being  an  eclipse  of  the  sun  in. 
February,  1831 ;  but,  oppressed  by  a  sense  of  the  great- 
ness of  the  task,  he  fell  sick,  and  did  not  begin  until 
August.  With  fifty  associates  he  then  began  a  massacre 
of  the  whites,  sparing  neither  age  nor  sex.  The  insur- 
rection was  at  once  suppressed,  and  Turner,  after  several 
weeks'  concealment,  was  captured  and  executed  in  No- 
vember. The  total  loss  of  life  was  sixty-one  whites  and 
over  a  hundred  negroes. 

The  Seminole  war  in  Florida  partook  very  much  of 
the  character  of  a  negro  insurrection.  While  Florida 
was  under  Spanish  rule,  very  many  fugitive  slaves  had 
taken  refuge  there  and  intermarried  with  the  Indians; 
and  the  desire  of  reclaiming  them  was  the  secret  of  many 
of  the  Indian  difficulties  of  that  region.  In  1816  Ameri- 
can troops  blew  up  the  "negro  fort  "  on  the  Appalachi- 
cola,  which  was  the  headquarters  of  the  fugitives. 

On  the  annexation  of  Florida,  slave  hunting  increased 
in  eagerness,  and  the  fugitives  were  pursued  into  the 
everglades.  In  1833  the  Seminoles  had  about  two  hun- 
dred slaves  of  their  own  and  twelve  hundred  fugitives. 
One  of  the  latter,  the  wife  of  Osceola,  was  seized  while 
trading  at  Fort  King,  and  her  enraged  husband  at  once 
began  open  war.  It  was  conducted  with  inhuman  cruelty 
on  both  sides,  the  most  prominent  example  being  the 
massacre  of  Major  Dade's  command,  December  28,  1835. 
The  American  commanders  hardly  ever  made  any  secret 


Slavery  in  the  United  States  23 

of  the  great  object  of  the  war,  the  recapture  of  the  fugi- 
tives ;  and,  as  the  Seminoles  refused  to  make  any  treaty 
in  which  the  fugitives  were  not  included,  the  war  was  long 
and  expensive. 

In  1845  a  treaty  was  arranged  for  the  removal  of  both 
Seminoles  and  fugitives  beyond  the  Mississippi,  but  the 
claimants  pursued  the  latter  with  every  form  of  legal 
attack,  secured  some  of  them,  and,  in  1852,  obtained 
payment  from  Congress  for  the  remainder.  The  Harper's 
Ferry  insurrection  closed  the  list  of  negro  revolts. 

III.  THE  SYSTEM  EXTERNALLY;  THE  SLAVE  TRADE. 
^ — i.  Foreign  Slave  Trade\-\\.  has  long  been  a  general 
belief  that  the  Colonies,  before  the  Revolution,  were 
anxious  to  prohibit  the  slave  trade,  but  were  prevented 
by  the  crown's  instructions  to  the  governors  to  veto  any 
such  laws;  and  the  Virginia  declaration  of  June  29,  1776, 
denounces  the  King  for  "prompting  our  negroes  to  rise  in 
arms  among  us,  those  very  negroes  whom,  by  an  inhuman 
use  of  his  negative,  he  had  refused  us  permission  to 
exclude  by  law." 

The  case  is  complete  enough  against  the  crown.  From 
the  time  of  Hawkins's  slaving  cruise  in  1562  the  British 
government  was  an  active  partner  in  the  slave  trade.  By 
the  treaty  of  Utrecht,  in  1713,  it  secured  for  one  of  its 
monopolies  the  slave  trade  from  Africa  to  the  West  In- 
dies; in  1750  it  beneficently  threw  open  the  trade  to  all 
its  subjects ;  and  its  consistent  policy  is  well  stated  in  the 
official  declaration  of  the  Earl  of  Dartmouth  in  1775,  that 
"the  Colonies  must  not  be  allowed  to  check  or  discourage 
in  any  degree  a  traffic  so  beneficial  to  the  nation." 

But  it  is  not  so  easy  to  clear  the  skirts  of  the  Colonies. 
The  assertion  of  their  desire  to  suppress  the  trade  rests 
on  the  passage  of  a  great  number  of  acts  laying  duties 
upon  it :  the  titles  of  twenty-four  of  these  acts  in  Vir- 
ginia are  given  in  Judge  Tucker's  Appendix  to  Black- 
stone.  But  almost  invariably  these  acts  were  passed  for 


24  The  Slavery  Controversy 

revenue  only,  and  the  Virginia  act  of  1752  notices  in  its 
preamble  that  the  duty  had  been  found  "no  ways  burden- 
some to  the  traders. ' ' 

It  was  not  until  the  opening  of  the  Revolution  that  any 
honest  effort  was  made  to  suppress  the  trade,  except  in 
Pennsylvania,  where  bills  to  abolish  the  slave  trade  were 
passed  in  1712,  1714,  and  1717,  and  vetoed.  The  Massa- 
chusetts General  Court  passed  a  bill  to  prohibit  the  slave 
trade,  March  7,  1774,  and  another,  June  i6th  following; 
but  both  were  vetoed.  It  was  prohibited  further  by 
Rhode  Island  in  June,  1774;  by  Connecticut  in  October, 
1774;  and  by  the  non-importation  covenant  of  the  Con- 
tinental Congress,  October  24,  1774,  as  follows: 

"We  will  neither  import  nor  purchase  any  slave  imported 
after  the  first  day  of  December  next,  after  which  time  we  will 
wholly  discontinue  the  slave  trade,  and  will  neither  be  con- 
cerned in  it  ourselves,  nor  will  we  hire  our  vessels,  nor  sell  our 
commodities  or  manufactures  to  those  who  are  concerned  in  it. ' ' 

This  covenant,  ratified  by  the  States,  North  and  South, 
checked  the  trade  for  the  time.  No  further  attempt  was 
made  by  Congress  to  interfere  with  the  trade,  and  the 
ratification  of  the  Articles  of  Confederation  in  1781  gave 
the  States  the  power  to  regulate  this  and  all  other  species 
of  commerce. 

In  the  formation  of  the  Constitution  the  question  of 
the  regulation  of  the  slave  trade  offered  a  great  difficulty. 
The  three  Southern  States  demanded  its  continuance, 
alleging  that  Virginia  and  Maryland  desired  to  prohibit 
it  only  to  secure  a  domestic  market  for  their  own  surplus 
slaves.  The  matter  was  compromised  by  allowing  Con- 
gress to  prohibit  it  after  1808. 

/    In  the  meantime  the  act  of  March  22,  1794,  prohibited 

I  the  carrying  of  slaves  by  American  citizens  from  one 

V  foreign  country  to  another;  the  act  of  May  10,   1800, 

allowed  United  States  war  vessels  to  seize  ships  engaged 


Slavery  in  the  United  States  25 

in  such  trade;  and  the  act  of  February  28,  1803,  pro-  \ 
hibited  the  introduction  of  slaves  into  States  which  had  \ 
forbidden  the  slave  trade  by  law.  Virginia  had  done  so 
by  statute  in  1778  and  1785,  Georgia  by  constitutional 
provision  in  1798,  South  Carolina  by  statute  in  1787  (re- 
pealed in  1803),  and  North  Carolina  by  statute  in  1798. 
Finally,  Congress,  by  act  of  March  2,  1807,  prohibited 
the  importation  of  slaves  altogether  after  the  close  of  the 
year;  the  acts  of  April  20,  1818,  and  March  3,  1819, 
authorized  the  President  to  send  cruisers  to  the  coast  of 
Africa  to  stop  the  trade;  and  the  act  of  May  15,  1820, 
declared  the  foreign  slave  trade  to  be  piracy.  It  cannot, 
however,  be  truly  said  that  the  slave  trade  was  abolished : 
it  never  really  ceased  before  1865. 

The  census  of  1870  assigns  Africa  as  the  birthplace  of 
nearly  two  thousand  negroes,  and  it  is  impossible  even  to 
estimate  the  number  illegally  imported  from  1808  until 
1865.  The  sixth  section  of  the  act  of  March  2,  1807, 
allowed  negroes  confiscated  under  the  act  to  be  disposed 
of  as  the  legislature  of  the  State  might  direct;  and 
Southern  legislatures  promptly  directed  the  sale  of  the 
confiscated  negroes.  This  absurd  section,  which  intro- 
duced slaves  into  the  South,  while  punishing  the  im- 
porter, was  repealed  March  3,  1819,  and  the  confiscated 
negroes  were  ordered  to  be  returned  to  Africa. 

The  claim  of  British  naval  officers  on  the  African  coast 
to  visit  and  search  vessels  flying  the  American  flag,  but 
suspected  of  being  slavers,  was  steadily  resisted  by  the 
American  Government,  and  led  to  an  infinite  variety  of 
diplomatic  difficulties  and  correspondence,  which  the 
reader  will  find  detailed  in  William  Beach  Lawrence's 
volume,  cited  below.  It  was  finally  compromised  by 
articles  eight  and  nine  of  the  Webster-Ashburton  treaty, 
August  9,  1842,  by  which  the  two  governments  agreed 
to  maintain  independent  squadrons  on  the  African  coast, 
to  act  in  conjunction. 


• 


26 


Difficult  as  this  made  the  slave  trade,  it  by  no  means 
suppressed  it ;  and,  as  the  price  of  negroes  in  the  South 
rose  higher,  importations  increased,  and  so  did  the  diffi- 
culties of  obtaining  convictions  from  Southern  juries. 

The  most  notorious  case  was  that  of  the  Georgia  yacht 
Wanderer,  in  December,  1858,  but  it  was  not  the  only 
one. 

According  to  the  Evening  Post  of  New  York  City, 
eighty-five  vessels  were  fitted  out  from  that  port  for  the 
slave  trade  during  eighteen  months  of  1859-60,  the  names 
of  the  vessels  being  given ;  and  another  newspaper  of  the 
same  city  estimated  the  cargoes  introduced  by  these  New 
York  vessels  alone  at  from  thirty  thousand  to  sixty  thou- 
sand negroes  annually.  Said  a  Georgia  delegate  in  the 
Charleston  convention  of  1860:  "If  any  of  you  Northern 
Democrats  will  go  home  with  me  to  my  plantation  I  will 
show  you  some  darkies  that  I  bought  in  Virginia,  some 
in  Delaware,  some  in  Florida,  and  I  will  also  show  you 
the  pure  African,  the  noblest  Roman  of  them  all.  I 
represent  the  African  slave  trade  interest  of  my  section." 

In  1858  an  ingenious  attempt  was  made  to  evade  the 
law.  A  Charleston  vessel  applied  for  a  clearance  to  the 
African  coast  ' '  for  the  purpose  of  taking  on  board  Afri- 
can emigrants,  in  accordance  with  the  United  States  pas- 
senger laws."  Howell  Cobb,  Secretary  of  the  Treasury, 
refused  to  give  the  clearance. 

As  we  approach  the  year  1860  we  find  growing  appre- 
hensions of  the  reopening  of  the  foreign  slave  trade.  It 
must  be  remembered  that  Congress  was  only  permitted, 
not  directed,  to  abolish  the  trade  after  1808,  and  that  a 
simple  repeal  of  the  law  of  1807  would  have  made  it  as 
legal  as  any  other  branch  of  commerce.^ 

The  inherent  weakness  of  the  system  of  slavery,  which 
grew  weaker  as  it  widened,  imperatively  demanded  the 
repeal.  To  retain  political  power  it  was  necessary  to  in- 
troduce the  custom  of  slavery  into  the  new  Territories  in 


Slavery  in  the  United  States         727} 

order  to  prepare  them  to  be  slave  States.  For  this  the  do- 
mestic supply  would  not  suffice;  and  Alex.  H.  Stephens, 
in  his  farewell  speech  to  his  constituents,  July  2,  1859, 
says  that  his  object  is  "to  bring  clearly  to  your  mind  the 
great  truth  that  without  an  increase  of  African  slaves 
from  abroad,  you  may  not  expect  or  look  for  many  more 
slave  States." 

The  repeal  of  the  law  of  1807,  an<^  the  revival  of  the 
foreign  slave  trade,  were  advocated  by  the  Southern 
commercial  convention  in  1858  and  1859,  by  De  Bow's 
Review,  and  by  a  great  and  growing  number  of  leading 
men  and  newspapers.  It  was  even  taking  the  aspect  of  a 
new  phase  of  a  distinct  Southern  political  creed,  an  effort 
to  repeal  that  which  was  a  standing  condemnation  of 
slaveholding  and  slaveholders. 

Before  anything  definite  could  be  attempted,  secession 
intervened.  The  constitution  of  the  Confederate  States 
forbade  the  foreign  slave  trade,  and  "required  "  Congress 
to  pass  such  laws  as  should  effectually  prevent  the  same. 
How  long  this  prohibition  would  have  endured,  if  inde- 
pendence had  been  achieved,  cannot  be  conjectured,  but 
it  is  certain  that  a  slaveholding  government  would  have 
found  far  more  difficulty  in  enforcing  such  a  prohibition 
than  the  Government  of  the  United  States  had  found. 

(2.  The  Domestic  Slave  Zlratffc.A-Even  barring  secession 
and  rebellion,  negro  slavery  haci  always  a  possible  danger 
in  the  undoubted  power  of  Congress  to  regulate  commerce 
"between  the. States. "  Should  this  power  ever  find  a 
majority  in  Congress  ready  to  apply  it  in  an  unfriendly 
spirit  to  the  sale  of  slaves  from  State  to  State,  and  thus 
to  coop  up  each  body  of  slaves  in  its  own  territory,  the 
system  would  be  injured  in  a  vital  point.  For  this  reason 
the  ninth  section  of  the  act  of  1807  allowed  the  transfer 
of  slaves  from  point  to  point  along  the  coast  in  vessels  of 
not  more  than  forty  tons  burden. 

After  the  abolition  of  slavery  in  the  British  Colonies, 


28  The  Slavery  Controversy 

American  coasting  vessels  with  slaves  on  board  would 
occasionally  be  forced  by  stress  of  weather  into  British 
West  India  ports,  when  the  authorities  at  once  liberated 
the  slaves.  Diplomatic  complications  followed,  of  course ; 
but  the  British  Government  steadily  refused  to  pay  for 
the  slaves  liberated,  except  in  cases  which  had  occurred  be- 
fore the  abolition  of  slavery  in  the  West  India  Colonies.1 

The  domestic  slave  trade  by  land  was  never  interfered 
with  until  the  abolition  of  slavery,  except  by  the  un- 
avoidable operations  of  war  during  the  Rebellion.  A  bill 
was  introduced  by  Sumner  in  1864  to  prohibit  it,  but  it 
came  to  nothing.  A  bill  to  repeal  the  sections  of  the  act 
of  1807  permitting  the  coastwise  slave  trade  was  added  as 
a  rider  to  an  appropriation  bill,  and  became  law  July  2, 
1864. 

IV.  THE  SUFFRAGE  CLAUSE  AND  THE  "SLAVE 
POWER."  —  The  Constitution  gave  to  the  States  in 
which  slavery  existed  legal  representation  in  the  Lower 
House  of  Congress  for  three  fifths  of  their  slaves.  In 
this  provision  there  was  innate  an  influence  which  was  as 
potent  on  the  political  aspect  of  the  slave  system  as  the 
cotton  culture  was  upon  its  material  aspect. 

It  must  be  remembered,  that,  in  spite  of  the  number 
of  slaves  in  the  South,  slave  owning  was  not  at  all  general 
in  that  section.  In  1850  the  white  population  of  the 
South  was  6,459,946,  and  De  Bow,  superintendent  of  the 
census,  and  a  pro-slavery  Southerner,  gives  the  number 
of  slaveholders  as  only  347,525,  classified  as  follows: 
holders  of  one  slave,  68,820;  2  to  5  slaves,  105,683;  6  to 
10  slaves,  80,765  ;  n  to  20  slaves,  54,595  ;  21  to  50  slaves, 
29>7335  51  to  loo  slaves,  6,196;  101  to  200  slaves,  1,479; 
201  to  300  slaves,  187;  301  to  500  slaves,  56;  501  to  1000 
slaves,  9;  over  1000  slaves,  2.  But  even  this  statement, 
De  Bow  admits,  has  an  element  of  deceptiveness,  for  most 
of  the  small  holders  were  not  slave  owners,  but  slave 

1  See  Creole  Case,  and  the  authorities  there  cited  for  the  other  cases. 


Slavery  in  the  United  States          (2g-y 

hirers;  and  he  estimates  the  actual  number  of  slave 
owners  at  186,551.  In  1850,  ninety  of  the  234  members 
of  the  House  of  Representatives  were  apportioned  to  the 
slaveholding  States.  If  we  omit  from  their  population 
three  fifths  of  the  number  of  their  slaves  in  1850,  they 
would  have  been  entitled  in  round  numbers  to  but  seventy 
representatives.  The  other  twenty  members  represented 
only  the  186,551  slave  owners,  and  the  loosest  examina- 
tion of  the  majorities  by  which  bills  passed  the  House  of 
representatives  during  the  anti-slavery  conflict  will  show 
that  the  introduction  of  these  twenty  votes  was  usually 
the  decisive  factor  down  to  1855.  This  consequence  was 
apparent  from  an  early  date.  The  repeal  of  the  suffrage 
clause  was  demanded  in  1814,'  and  the  demand  grew  still 
stronger  after  1833,  and  never  failed  to  excite  the  hottest 
wrath  of  Southern  members. 

Perhaps  the  occasion  which  roused  the  most  intense 
feeling  was  the  presentation  by  John  Quincy  Adams  in 
Congress,  December  21,  1843,  °f  a  formal  proposal  from 
the  Democratic  Legislature  of  Massachusetts  to  amend 
the  Constitution  by  repealing  the  three-fifths  clause.  In 
Congress  it  was  denounced  unsparingly,  and  refused  the 
privilege  of  printing,  and  out  of  Congress  the  fervor  of 
denunciation  was  unreportable. 

But  the  direct  operation  of  the  three-fifths  clause  was 
far  less  than  its  indirect  influence.  It  must  be  remem^ 
bered  that  the  200,000  slave  owners  necessarily  included 
in  their  ranks  almost  all  the  governors,  judges,  legislators, 
and  leading  men  of  the  slave  States,  and  their  senators 
and  representatives  also,  since  the  purchase  of  one  or 
more  slaves  was  the  first  step  of  any  man  who  began  to 
acquire  wealth ;  and  that  all  these  men  were  united  by  a 
common  purpose,  the  protection  of  property,  which 
was  superior  in  its  everyday  operation  to  almost  any 
other  claim.  Practically,  then,  the  200,000  slave  owners, 

-*• 

1  See  Hartford  Convention. 


30  The  Slavery  Controversy 

recruited  from  time  to  time  by  new  accessions,  formed  a 
dominant  class ;  and  the  ninety  representatives  and  thirty 
senators  (in  1850)  not  only  represented  them,  but  were 
selected  from  their  number. 

Such  a  political  force  as  this  had  never  before  appeared 
in  American  politics :  the  utmost  conceivable  evils  of  the 
influence  of  corporations  must  pale  their  fires  before  it ; 
and  it  is  no  wonder  that,  as  it  rose  gloomier  and  more 
threatening  upon  the  Southern  sky,  the  instinctive  po- 
litical sense  of  the  people  gave  it  the  name  of  the  "slave 
power."  In  the  nature  of  things  this  power  could  not 
be  conservative:  it  must  be  aggressive,  for  the  interest 
represented  by  it  demanded  extension  to  obtain  profit; 
and  yet,  as  it  grew  wider,  it  grew  weaker,  and  needed  still 
warmer  support.  The  general,  double-acting  rule  was: 
the  more  slaves,  the  more  territory ;  the  more  territory, 
the  more  slaves.  It  was  not  in  human  nature  for  the 
men  who  made  up  the  slave  power  to  resist  an  influence 
so  constant,  so  natural,  so  silent,  and  so  powerful,  and 
the  vicious  twist  given  by  it  to  the  whole  Southern  policy 
grew  stronger  yearly.  No  influence,  even  that  of  honor, 
could  resist  its  undermining  or  escape  being  argued  away. 
It  was  progressively  successful  in  transplanting  the  cus- 
tom of  slavery  beyond  the  Mississippi,  in  swinging  the 
whole  force  of  the  nation  upon  Mexico  for  the  acquisition 
of  new  slave  territory,  and  in  violating  the  condition 
precedent  on  which  it  had  obtained  the  admission  of 
Missouri  as  a  slave  State;  and  it  was  partially  prepared 
in  1861  to  shock  the  conscience  of  civilization  by  reopen- 
ing the  foreign  slave  trade,  to  whose  suppression  the 
good  faith  of  the  nation  was  pledged.  But  before  this 
last  effort  could  be  made,  its  time  had  come. 

The  internal  defects  of  the  combined  cotton-slave  sys- 
tem could  not  remain  stationary.  Nothing  is  more  cer- 
tain than  that,  from  1850  to  1860,  the  number  of  slave 
owners  was  diminishing,  particularly  in  the  Gulf  States, 


Slavery  in  the  United  States  31 

the  plantations  were  growing  larger,  the  cotton  culture 
was  becoming  less  and  less  patriarchal  and  more  and 
more  of  a  business,  and  the  slave  power  itself  was  growing 
more  compact,  grasping,  and  reckless.  It  might  have 
been  that,  without  secession,  this  concentrating  process 
would  have  gone  on  until  the  non-slaveholding  whites 
of  the  South  would  have  united  against  it ;  but  that  pos- 
sibility was  never  tried.  In  1860  the  rising  anti-slavery 
tide  of  the  North  and  West  came  into  flat  collision  with 
the  rising  tide  of  the  slave  power,  and  equilibrium  was  at 
last  restored  by  violence. 

It  was  not  alone  the  inherent  grasping  nature  of  the 
slave  power  which  affronted  the  non-slaveholding  States 
and  helped  to  bring  about  the  final  catastrophe.  It  is  no 
reflection  upon  Southern  legislators  of  the  present  to  say 
that  the  slaveholding  member  of  Congress  until  1861  was 
in  general  an  exceedingly  unpleasant  personage.  His 
faults  of  thought,  feeling,  expression,  and  manner  were 
long  ago  explained  by  Jefferson: 

"  If  a  parent  had  no  other  motive,  either  in  his  own  philan- 
thropy or  in  his  self-love,  for  restraining  the  intemperance  of 
passion  toward  his  slave,  it  should  always  be  a  sufficient  one 
that  his  child  is  present.  But  generally  it  is  not  sufficient. 
The  parent  storms,  the  child  looks  on,  catches  the  lineaments 
of  wrath,  puts  on  the  same  airs  in  the  circle  of  smaller  slaves, 
gives  a  loose  rein  to  his  worst  passions,  and  thus  nursed,  edu- 
cated and  daily  exercised  in  tyranny,  cannot  but  be  stamped 
by  it  with  odious  peculiarities." 

However  unjust  it  may  be  in  theory  to  wage  a  political 
crusade  against  bad  manners,  it  is  as  certain  as  anything 
can  be  that  the  political  union  of  the  free  States  in  1860 
was  largely  brought  about  by  the  "odious  peculiarities  " 
of  slaveholding  members  of  Congress  in  debate.  Their 
boisterous  violence,  their  willingness  to  take  liberties  of 
language,  contrasted  with  their  unwillingness  to  allow 


32  The  Slavery  Controversy 

the  same  liberty  to  opponents,  their  disposition  to  sup- 
plement discussion  with  actual  violence  or  threats  of  it, 
the  indescribable  and  merciless  assumption  of  an  acknow- 
ledged superiority,  made  the  debates  of  1 850-60  a  shameful 
record,  and  are  still  remembered  by  their  old  opponents, 
with  a  certain  soreness,  as  "plantation  manners."  It 
was  bad  enough  that  a  Senator  should  be  clubbed  into 
unconsciousness  for  words  spoken  in  debate;  it  was,  if 
anything,  worse  that  his  first  speech  on  his  return  to  the 
Senate  should  be  answered  by  a  South  Carolina  Senator 
with  the  remark  that  "we  are  not  inclined  again  to  send 
forth  the  recipient  of  punishment  howling  through  the 
world,  yelping  fresh  cries  of  slander  and  malice." 

Southern  writers  will  never  fully  understand  the  elec- 
tion of  1860  until  they  come  to  study,  in  the  light  of  the 
new  training,  the  debates  which  preceded  it. 

A  power  so  situated,  in  a  constantly  weakening  minority 
in  the  nation,  and  yet  supreme  in  influence  in  its  own 
States,  was  necessarily  particularist  in  theory.  Where  it 
ruled,  the  forefathers  had  said  State  sovereignty  and 
meant  State  rights,  while  their  descendants  said  State 
rights  and  meant  State  sovereignty  (see  that  title).  And 
the  development  of  the  great  cotton  interest  made  State 
sovereignty  even  worse  than  it  was  by  nature :  instead  of 
the  jarring  and  comparatively  innocuous  demands  of  State 
sovereignty,  it  banded  together  a  number  of  States  by  a 
common  controlling  interest,  and  evoked  the  deadly  peril 
of  sectional  sovereignty.1 

State  rights  could  never  have  caused  a  blow;  even 
State  sovereignty  would  have  died  a  harmless  and  natural 
death;  but  slavery  and  sectional  State  sovereignty  each 
so  acted  and  reacted  upon  the  evil  points  of  the  other 
that  the  combined  tumor  was  at  last  beyond  reach  of  any- 
thing but  the  knife.  But,  during  its  existence,  slavery 
never  hesitated  upon  occasion  to  drop  State  sovereignty 

1  See  Nullification,  Secession. 


Slavery  in  the  United  States  33 

for  the  time,  and  use  the  nation  and  the  national  idea  as 
political  forces  for  its  advancement ;  and  yet  it  never  did 
so,  except  in  the  c,ase  of  the  acquisition  of  Florida,  with- 
out injuring  itself. 

In  its  infancy  it  acquired  the  territory  west  of  the  Mis- 
sissippi by  a  process  which  was  only  defensible  on  the 
ground  that  the  powers  of  the  Government  were  given  by 
a  nation,  and  not  by  sovereign  States;  and  out  of  this 
territory  grew  its  subsequent  difficulties.  It  flung  the 
nation  upon  Mexico,  and  the  disputes  over  the  territory 
thus  acquired  first  put  the  anti-slavery  sentiment  into 
political  shape.  It  forced  the  passage  of  a  fugitive  slave 
act  fatally  adverse  to  State  sovereignty  and  State  rights 
in  compensation  for  the  admission  of  California  as  a 
State,  an  act  whose  operation  made  its  moving  power 
the  object  not  only  of  dread  but  of  abhorrence  in  the  free 
States.  Finally,  by  transferring  theoretical  State  sover- 
eignty into  practical  secession,  it  compelled  such  an  ex- 
tensive showing  of  national  power  that  the  effects  will  be 
felt  for  generations  to  come. 

V.  SLAVERY  IN  TERRITORIES  AND  NEW  STATES. — It 
is  certain  that  slavery  in  the  original  States  was  founded 
on  custom  only,  and  the  same  foundation,  if  any,  must 
be  found  for  slavery  in  Territories  and  new  States.  The 
modern  States  of  Kentucky  and  Tennessee,  for  example, 
were  never  colonies  or  territories  of  their  parent  States : 
they  were  integral  parts  of  Virginia  and  North  Carolina, 
and  the  custom  of  slavery  was  established  at  Nashville  or 
Harrodsburgh  on  just  the  same  basis  as  at  Beaufort  or 
Richmond.  When  their  separation  from  the  parent  States 
took  place,  the  custom  of  slavery  remained,  and  they  en- 
tered the  Union  as  slave  States. 

Granting  that  no  opposition  to  slavery  was  felt  by  the 
nation  at  large,  the  same  process  might  have  been  re- 
peated anywhere,  and  custom,  unopposed,  might  have 
made  any  territory  slave  soil,  and  brought  it  into  the 


VOL.  II. — 3. 


The  Slavery  Controversy 

Union  as  a  slave  State.  It  is,  therefore,  impossible  to 
admit  fully  the  dogma,  so  popular  and  useful  in  the  anti- 
slavery  conflict,  that  the  national  territory  was  free  soil 
without  any  statutory  enactment.  It  might  be  free,  and 
it  might  be  slave,  according  to  custom.  In  the  cases  of 
Kentucky,  Tennessee,  Mississippi,  and  Alabama,  the 
cessions  of  their  territory  were  accepted  by  the  United 
States  from  Virginia,  North  Carolina,  South  Carolina, 
and  Georgia,  under  a  pledge  not  to  interfere  with  the 
existing  custom  of  slavery.  The  rights  of  all  these  States 
to  the  territory  which  they  professed  to  cede,  like  the 
rights  of  New  York,  Connecticut,  and  Massachusetts  to 
the  northwestern  territory,  were  exceedingly  doubtful ; 
nevertheless,  the  pledge  was  honorably  fulfilled. 

The  slaveholding  States  always  denied  that  any  act  of 
Congress  could  prohibit  the  custom  of  slavery  in  a  Terri- 
tory. But  this  is  as  impossible  of  acceptance  as  the  free- 
soil  dogma  above  stated.  The  Territories  were  certainly 
not  without  law.  Their  inhabitants  were  not  the  law- 
making  power,  for  then  there  would  have  been  no  dis- 
tinction between  Territories  and  States.  On  any  other 
subject  than  slavery,  no  one,  in  court  or  Congress,  denied 
that  Congress  was  the  law-maker  for  the  Territories. 
But  slavery  was  only  a  custom ;  and,  while  no  one  denies 
that  a  custom  is  valid  until  abrogated  by  statute,  this  has 
been  the  only  case  in  which  it  has  been  seriously  asserted 
that  any  custom  is  above  and  beyond  abrogation  by 
statute. 

So  evident  was  this  in  1787  that  the  ordinance  of  that 
year '  abolished  slavery  in  the  territory  northwest  of  the 
Ohio,  in  whose  case  no  restraining  pledge  had  been  given. 
The  Articles  of  Confederation,  which  were  then  in  force, 
gave  Congress  no  power  to  so  prohibit  slavery,  or,  in- 
deed, to  hold  or  govern  territory  at  all. 

The  whole  act  was  so  obviously  a  consequence  of  the 

1  See  Ordinance  of  1787. 


Slavery  in  the  United  States 

national  power  to  hold  and  govern  its  own  territory,  and 
was  so  plain  a  parallel  to  the  proposal  to  similarly  pro- 
hibit slavery  in  the  Mexican  annexations,1  that  Southern 
writers  have  endeavored  to  avoid  it  in  two  ways :  i.  They 
assert  that  the  ordinance  was  merely  an  expression  of  the 
will  of  the  several  States,  a  new  article  of  confederation, 
so  to  speak.  This  is  impossible.  The  State  vote  on  the 
Ordinance  of  1787  was  indeed  unanimous,  but  this  fact 
has  no  bearing  on  the  matter,  for  the  Ordinance  of  1784, 
which  covered  much  the  same  ground  (excepting  the 
prohibition  of  slavery),  was  not  adopted  by  unanimous 
vote,  South  Carolina  voting  in  the  negative,  and  yet  its 
validity  was  never  impeached  on  that  account.  Further, 
the  Articles  of  Confederation  were  to  be  amended  by 
State  legislatures  only :  however  we  may  admit  the  power 
of  a  national  convention  to  override  them,  we  can  hardly 
acknowledge  the  power  of  Congress  itself  to  amend  them. 
2.  Judge  Taney,  in  the  Dred  Scott  decision,  holds  that 
the  Ordinance  of  1787  "had  become  inoperative  and  a 
nullity  upon  the  adoption  of  the  Constitution."  If  this 
was  so,  and  if  it  was  true,  as  the  same  decision  holds, 
that  the  power  of  Congress  to  "make  all  needful  rules 
and  regulations  "  for  the  territory  of  the  United  States 
was  intended  to  be  confined  to  the  territory  then  owned 
by  the  United  States,  and  not  to  be  extended  to  territory 
subsequently  acquired,  the  fugitive  slave  law  of  1850  was 
in  a  large  degree  unconstitutional.  It  was  based  on  the 
fugitive  slave  clause  of  the  Constitution :  but  this  only 
allowed  the  reclamation  of  slaves  from  one  State  to  an- 
other State* 

During  the  territorial  existence  of  the  Northwest  the 
ground  was  covered  by  this  proviso  to  the  prohibition  of 
slavery  by  the  Ordinance  of  1787 :  "provided  always  that 
any  person  escaping  into  the  same,  from  whom  labor  or 
service  is  lawfully  claimed  in  any  one  of  the  original 

1  See  Wilmot  Proviso.  *  See  Fugitive  Slave  Laws. 


36  The  Slavery  Controversy 

States,  such  fugitive  may  be  lawfully  reclaimed  and  con- 
veyed to  the  person  claiming  his  or  her  labor  or  service 
as  aforesaid."  If  the  power  to  make  "rules  and  regula- 
tions "  for  the  Territories  only  applied  to  the  territory 
owned  in  1789,  and  was  intended  to  supply  the  place  of 
the  fugitive  slave  clause  in  the  superseded  Ordinance  of 
1787,  it  follows  that  the  fugitive  slave  law  of  1793  ex- 
hausted the  constitutional  powers  of  Congress  to  provide 
for  the  reclamation  of  fugitive  slaves  from  a  Territory. 

All  the  trans-Mississippi  territory  was  subsequently 
acquired;  and,  if  the  Dred  Scott  decision  was  correct, 
the  fugitive  slave  law  of  1850  was  unconstitutional  in 
providing  for  the  reclamation  of  fugitive  slaves  from  it. 
The  consequence  must  have  been  that  the  trans-Missis- 
sippi Territories,  whether  slavery  were  allowed  or  pro- 
hibited in  them,  would  have  been  a  sort  of  Alsatia,  a  safe 
refuge  for  fugitive  slaves;  and  slavery  would  have  been  at 
a  greater  disadvantage  than  under  the  Ordinance  of  1787. 

The  custom  of  slavery  was  already  in  existence  in 
Louisiana  and  Florida  at  the  time  of  their  annexation, 
but  the  responsibility  for  its  enlargement  is  directly  upon 
Congress.  The  act  of  March  26th,  1804,  provided  that 
no  slaves  should  be  introduced  into  the  territory,  except 
"by  a  citizen  of  the  United  States,  removing  into  said 
territory  for  actual  settlement,  and  being  at  the  time  of 
such  removal  bona  fide  owner  of  such  slave  or  slaves  ' ' ; 
and  the  act  of  March  30,  1822,  while  forbidding  the  im- 
portation of  slaves  from  without  the  United  States,  by 
implication  allowed  the  domestic  slave  trade. 

Both  acts  confirmed  the  laws  then  in  force  in  the  Terri- 
tories, and  not  inconsistent  with  the  acts;  and  as  the 
territorial  laws  recognized  slavery,  it  continued  in  force, 
and  Louisiana  and  Florida  entered  the  Union  as  slave 
States.  Upon  the  admission  of  Louisiana  as  a  State, 
the  continuance  of  the  custom  of  slavery  in  the  rest  of 
the  purchase  was  practically  provided  for  by  the  sixteenth 


Slavery  in  the  United  States  37 

section  of  the  act  of  June  4,  1812,  continuing  the  terri- 
torial laws  of  Louisiana  in  the  new  Territory  of  Missouri. 
Again,  when  the  new  Territory  of  "Arkansaw"  was 
created  by  the  act  of  March  2,  1819,  a  similar  provision 
continued  in  the  new  Territory  the  laws  of  Missouri, 
which  recognized  slavery. 

The  consequences  of  this  long  laches,  this  omission  of 
Congress  to  prohibit  the  custom  of  slavery,  which  had 
been  recognized  by  French,  Spanish,  and  territorial  law, 
had  now  become  apparent  in  the  application  of  Missouri 
for  admission  as  a  slave  State,  and  the  tardy  attempt  in 
Congress  to  attack  the  evil  raised  a  political  storm.  On 
the  one  hand,  since  the  new  State  had  not  the  ability  to 
compel  a  recognition  of  its  existence,  its  recognition  was 
clearly  a  matter  of  favor,  on  which  Congress  could  im- 
pose such  conditions  as  it  should  consider  needful.  On 
the  other,  it  was  hardly  just  that  Congress  should  per- 
mit the  existence  of  even  an  evil  custom  during  its 
own  responsibility  for  government,  and  only  undertake 
to  abolish  it  at  the  instant  of  giving  the  State  professed 
self-government. 

The  settlement  of  the  case  is  elsewhere  given ' ;  it  re- 
sulted in  the  abolition  of  slavery  in  the  rest  of  the 
Louisiana  purchase,  above  36°  30'  north  latitude,  and 
the  admission  of  Missouri  as  a  slave  State.  As  there  was 
no  abolition  of  the  custom  of  slavery  in  the  Territory  of 
Arkansas,  we  must  consider  the  custom  left  still  in  ex- 
istence there.  On  the  application  of  Arkansas  for  admis- 
sion as  a  slave  State  in  1836,  there  were  some  symptoms 
of  a  renewal  of  the  Missouri  struggle;  but  John  Quincy 
Adams  and  other  anti-slavery  men  agreed  that  the  ad- 
mission of  Arkansas  was  fairly  nominated  in  the  Missouri 
bond,  and  the  State  was  admitted.  At  the  same  session 
an  increase  in  the  area  of  Missouri  made  a  considerable 
addition  to  the  slave  soil  of  the  United  States. 

1  See  Compromises. 


429853 


38  The  Slavery  Controversy 

Here  the  extension  of  slavery  stopped,  with  the  excep- 
tion of  the  admission  of  Florida  and  Texas  as  slave  States 
in  1845.  Tne  area  °f  Texas  had  been  free  soil  under  the 
decree  of  Guerrero,  the  Mexican  dictator,  in  1829,  after- 
ward ratified  by  the  Mexican  Congress;  and  slavery  is 
not  recognized  in  the  constitution  of  the  Mexican  state 
of  Coahuila  and  Texas,  or  in  the  provisional  Texas  con- 
stitutions of  1833  and  1835.  But  American  settlers  had 
brought  their  slaves  with  them,  and  fairly  introduced  the 
custom  of  slavery;  and  the  constitution  of  1836  formally 
declared  all  persons  of  color  slaves  for  life,  if  they  had 
been  in  that  condition  before  their  emigration  to  Texas, 
and  were  then  held  in  bondage.  This,  though  the  State 
was  not  in  the  Union  as  yet,  was  the  only  instance  of 
the  professed  establishment  of  slavery  by  the  organic  law 
of  an  American  State,  unless  we  are  to  take  the  Massa- 
chusetts code  of  1641  as  the  first. 

The  basis  of  the  system  is  clearly  expressed  in  a  section 
of  the  Kentucky  constitution  of  1850,  as  follows:  "The 
right  of  property  is  before  and  higher  than  any  constitu- 
tional sanction ;  and  the  right  of  the  owner  of  a  slave  to 
such  slave  and  its  increase  is  the  same  and  as  inviolable 
as  the  right  of  the  owner  of  any  property  whatever."  It 
was  no  more  necessary,  then,  to  declare  a  constitutional 
right  of  property  in  the  case  of  slaves  than  in  the  case  of 
horses:  in  both  cases  the  legislature  was  to  accept  and 
defend  the  right  without  question.  A  slave  State  was 
regularly  declared  such,  at  its  admission,  only  by  the 
provision  forbidding  the  legislature  to  emancipate  slaves 
without  consent  of  owners,  or  to  forbid  the  domestic 
slave  trade. 

As  slavery  reached  the  limits  of  its  State  extension  in 
1845,  it  only  remains  necessary  to  recur  to  its  attacks 
upon  the  Territories.  Here  the  customary  basis  of  sla- 
very makes  manifest  the  weakness  of  the  claims  for  its 
extension  after  1845.  It  is  one  thing  to  acknowledge  the 


Slavery  in  the  United  States  39 

validity  of  a  recognized  and  unopposed  territorial  custom 
in  Louisiana,  Missouri,  and  Arkansas:  it  is  a  very  differ- 
ent thing  to  admit,  as  pro-slavery  advocates  required, 
that  the  custom  could  not  be  abolished  by  statute,  or 
prohibited  where  it  did  not  exist.  Nevertheless,  in  this 
respect,  the  compromise  of  1850  gave  the  slave  States 
all  they  then  asked.  It  refrained  from  prohibiting  the 
custom,  and  gave  the  territorial  legislature  a  general  right 
of  legislation,  subject,  of  course,  to  the  veto  power  of 
Congress.  But  this  last  was  now  a  meaningless  form :  it 
was  impossible  to  obtain  the  passage  of  an  act  by  Con- 
gress and  the  President,  annulling  a  territorial  law  recog- 
nizing slavery. 

Congress  practically  gave  loose  reins  to  the  territorial 
legislatures,  and  they  took  advantage  of  it.  New  Mexico 
(then  including  Arizona)  passed  an  act  in  1851  recogniz- 
ing peonage,  or  white  slavery,  and  another  in  1859  recog- 
nizing negro  slavery ;  and  Utah  (then  including  Nevada) 
passed  an  act  in  1852  maintaining  the  right  of  slavehold- 
ing  immigrants  to  the  services  of  their  slaves.  None  of 
these  acts  was  annulled  until  1862.' 

The  Kansas-Nebraska  bill  (see  that  title)  in  1854  went 
a  step  further.  It  took  off  the  Missouri  prohibition  of 
1820,  and  allowed  the  introduction  of  the  custom  into  all 
the  Territories.  It  is  at  least  doubtful,  leaving  out  the 
good  faith  of  the  repeal,  whether  a  custom  could  properly 
be  introduced  in  that  way ;  but  the  climax  of  doubtful- 
ness was  reached  when  the  Kansas  struggle  showed  that 
the  custom  had  no  chance  of  practical  introduction  in 
that  Territory.  The  pro-slavery  claim*  was  then  advanced 
that  both  Congress  and  the  territorial  legislatures  were 
bound  to  defend  slavery  in  the  Territories.  If  negro  sla- 
very was  based  on  custom,  and  not  on  organic  law,  this 
claim  was  certainly  a  novelty  in  jurisprudence. 

1  See  Wilmot  Proviso. 

8  See  Dred  Scott  Case  ;  Democratic  Party,  Compromises. 


40  The  Slavery  Controversy 

We  can  easily  understand  the  recognition  or  the  prohi- 
bition of  a  custom  by  statute,  but  the  establishment  of  a 
custom  by  statute  is  beyond  conception.  Yet  this  is  the 
sum  of  the  Southern  demand,  when  divested  of  verbiage 
and  reduced  to  its  real  essence;  and  secession  was  based 
on  the  refusal  of  the  demand. 

For  the  political  influence  of  slavery,  see  Democratic 
Party,  Whig  Party,  American  Party,  Republican  Party. 
For  the  extinction  of  the  system,  see  Abolition,  Emanci- 
pation Proclamation.  See,  in  general,  Williams's  History 
of  the  Negro  Race;  Wilson's  Slave  Power  in  America; 
Hildreth's  United  States ;  von  Hoist's  United  States ; 
Kapp's  Geschichte  der  Sklaverei ;  I  Draper's  History  of 
the  Civil  War ;  Jay's  Miscellaneous  Writings  on  Slavery ; 
Cobb's  Historical  Sketch  of  Slavery ;  Goodell's  Slavery 
and  Anti-Slavery ;  Nott's  Slavery  and  the  Remedy ; 
Weston's  Progress  of  Slavery  ;  and,  on  behalf  of  slavery, 
The  Pro-Slavery  Argument,  including  Hammond's  Letters 
on  Slavery,  and  Dew's  Review  of  the  Virginia  Debate  of 
1832;  Adams's  South  Side  View  of  Slavery ;  Fitzhugh's 
Sociology  for  the  South ;  and  Sawyer's  Southern  Institu- 
tions.— (I.)  3  Bancroft's  United  States,  415;  Hildreth's 
Despotism  in  America;  Kurd's  Law  of  Freedom  and 
Bondage ;  H.  Sherman's  Slavery  in  the  United  States ; 
Stroud's  Laws  of  Slavery ;  Goodell's  American  Slave 
Code ;  Poore's  Federal  and  State  Constitutions ;  authori- 
ties under  the  States  named,  particularly  Moore's  Slavery 
in  Massachusetts ;  Ambler's  (Chancery)  Reports,  76;  n 
State  Trials,  340,  and  Lofft's  (K.  B.}  Reports,  \  (Sommer- 
settcase);  Livermore's  Historical  Research  on  Negroes;  5 
Elliot's  Debates,  392;  Jefferson's  Notes  on  Virginia  (edit. 
1800),  164;  i  Bishop 's  History  of  A  merican  Manufactures, 
355>  397;  Pitkin's  Statistical  View  of  American  Com- 
merce, no;  Cotton  is  King  (1855);  Kettell's  Southern 
Wealth  and  Northern  Profits  ;  Turner's  History  of  Cotton 
and  the  Cotton  Gin  (1857);  Donnell's  History  of  Cotton 


Slavery  in  the  United  States  41 

(1872);  3  von  Hoist's  United  States,  563;  5  Sumner's 
Works,  i,  or  Lester's  Life  of  Sumner,  311 ;  Helper's  Im- 
pending Crisis;  Olmstead's  Cotton  Kingdom;  Census 
Reports,  1850-70;  King's  The  Great  South  (1875);  Hay- 
good's  The  New  South  (1880). — (II.)  The  general  au- 
thorities; the  first  seven  authorities  under  preceding 
section ;  Horsmanden's  New  York  Negro  Plot  of  1741  ; 
Atlantic  Monthly,  June,  1861  (Vesey),  August,  1861 
(Turner);  G\dd.\ngs  s  Exiles  of  Florida. — (III.)  Clarkson's 
History  of  the  Slave  Trade,  52;  Copley's  History  of 
Slavery,  113;  Andre ws '  s  Slavery  and  the  Domestic  Slave 
Trade ;  Carey's  The  Slave  Trade,  Domestic  and  Foreign  ; 
i  Draper's  History  of  the  Civil  War,  418;  Foote's  Africa 
and  the  American  Flag ;  Continental  Monthly,  January, 
1862  (Slave  Trade  in  New  York);  2  Tucker's  Blackstone, 
Appendix,  49;  i  Journals  of  Congress,  24;  i  Stat.  at 
Large,  347  (act  of  March  22,  1794);  2  Stat.  at  Large,  70, 
205,  426  (acts  of  May  10,  1800,  Feb.  28,  1803,  and  March 
2,  1807);  Quincy's  Life  of  Quincy,  102;  3  Stat.  at  Large, 
450,  533,  600  (acts  of  April  20,  1818,  March  3,  1819,  and 
May  15,  1820);  W.  B.  Lawrence's  Visitation  and  Search ; 
Cleveland's  A,  H.  Stephens  in  Public  and  Private,  647; 
Sprott's  Foreign  Slave  Trade. — (IV.)  The  general  authori- 
ties; Cairnes's  The  Slave  Power ;  2  Olmstead's  Cotton 
Kingdom,  192;  Census  Report,  1850. — (V.)  I  Stat.  at 
Large,  106,  and  2  ib.,  70,  235  (cessions  by  North  Carolina 
and  Georgia) ;  4  Journals  of  Congress,  380  (ordinance  of 
1784);  authorities  under  Ordinance  of  1787;  Fisher's  Law 
of  the  Territories ;  2  Benton's  Debates  of  Congress,  221, 
and  16  ib.  (index  under  Slavery)  ;  Burgess's  Middle 
Period;  W.  H.  Smith's  Political  History  of  Slavery;  Hay 
and  Nicolay's  Life  of  Lincoln  ;  Pearson's  Life  of  Andrew  ; 
Francis  Curtis's  History  of  ttte  Republican  Party ;  for 
the  acts  in  regard  to  the  States  and  Territories,  see  au- 
thorities under  their  names. 


CHAPTER  II 

THE  ABOLITION  AGITATION 

I.  GRADUAL  ABOLITION  (1776-1830). — At  the  begin- 
ning of  our  national  history  abolition  was  a  desire  rather 
than  a  purpose,  a  matter  of  sentiment  rather  than  of  en- 
deavor. In  this  sense  every  humane  and  thinking  man, 
North  or  South,  was  an  Abolitionist.  It  would  be  waste 
of  space  to  quote  the  words  of  Washington,  Jefferson, 
Madison,  Henry,  Mason,  Laurens,  and  other  Southerners, 
in  order  to  show  the  drift  of  feeling  in  the  South  on  this 
subject.  All  concurred  in  deploring  the  existence  of~j 
slavery  in  their  section,  and  in  hoping  that  in  some  way 
not  yet  imagined  its  gradual  and  peaceful  abolition  would 
finally  be  accomplished. 

In  the  North  the  feeling  was  the  same,  except  that  the 
Quakers,  or  Society  of  Friends,  had,  since  1760,  taken 
higher  ground,  and  had  made  slaveholding  and  slave- 
trading  matter  for  church  discipline.  In  1777  Vermont, 
not  yet  admitted  to  the  Union,  formed  a  State  constitu- 
tion abolishing  slavery.  State  constitutions  were  formed 
by  Massachusetts,  including  Maine,  in  1780,  and  by  New 
Hampshire  in  1783,  which  the  courts  at  once  construed 
as  abolishing  slavery.  Gradual  abolition  was  secured  by 
statute  in  Pennsylvania  in  1780,  in  Rhode  Island  and 
Connecticut  in  1784,  in  New  York  in  1799,  and  in  New 
Jersey  in  1804. 

Abolition  of  slavery  in  the  Northwest  Territory,  north 
of  the  Ohio  and  east  of  the  Mississippi,  including  the 


42 


The  Abolition  Agitation 

present  States  of  Ohio,  Illinois,  Indiana,  Michigan,  Wis- 
consin, and  part  of  Minnesota,  was  secured  by  the  Ordi- 
nance of  1787.  Here  the  process  of  abolition  ceased  for 
a  long  time,  except  that  in  1817  New  York  totally  abol- 
ished slavery  after  July  4,  1827,  and  that  slavery  in  part 
of  the  Louisiana  purchase,  including  the  present  States 
of  Iowa,  Oregon,  Kansas,  Nebraska,  a  part  of  Colorado, 
and  part  of  Minnesota,  was  abolished  by  the  Missouri 
Compromise,1  whose  validity  was  rejected  by  the  Supreme 
Court8;  but  the  provision  for  abolition  was  embedded  in 
the  State  constitutions  of  the  States  named  as  they  were 
severally  admitted. 

In  process  of  time  gradual  abolition  took  effect  in  the 
States  which  had  adopted  it  by  statute,  but  so  slowly 
that  there  were,  in  1840,  674  slaves  in  New  Jersey,  331  in 
Illinois,  64  in  Pennsylvania,  and  from  i  to  17  in  Connec- 
ticut, Indiana,  Iowa,  New  Hampshire,  New  York,  Ohio, 
Rhode  Island,  and  Wisconsin,  respectively.  In  1850 
slavery  had  disappeared  in  all  these  States  except  New 
Jersey,  which  still  had  236  slaves  in  1850  and  18  in  1860, 
the  latter  number  being  " apprentices  for  life,"  under  the 
State  act  of  April  18,  1846.  In  1831-32  the  insurrection 
of  Nat  Turner  excited  a  strong  desire  for  gradual  abolition 
in  Virginia,  which  was  with  great  difficulty  smothered 
after  a  three  weeks'  debate  in  the  Legislature. 

Abolition  Societies^  based  on  the  idea  of  gradual  aboli- 
tion, were  formed  in  Pennsylvania  in  1774,  in  New  York 
in  1785,  in  Rhode  Island  in  1786,  in  Maryland  in  1789, 
in  Connecticut  in  1790,  in  Virginia  in  1791,  and  in  New 
Jersey  in  1792.  These  societies  held  annual  conventions, 
and  their  operations  were  viewed  by  the  more  humane 
slaveholders  with  some  favor,  since  they  aimed  at  nothing 
practical  or  troublesome,  except  petitions  to  Congress, 
and  served  as  a  moral  palliative  to  the  continuance  of  the 

1  See  Compromises. 
*  See  Dred  Scott  Case. 


44  The  Slavery  Controversy 

practice.  The  abolition  of  the  African  slave-trade  by 
Great  Britain  in  1807,  and  by  the  United  States  in  1808, 
came  as  a  great  relief  to  the  abolition  societies,  which  had 
grown  discouraged  by  the  evident  impossibility  of  effect- 
ing anything  in  the  South,  and  were  now  ready  to  accept 
this  success  as  the  limit  of  possibility  for  the  present. 
Their  annual  national  meetings  became  more  infrequent 
and  soon  ceased  altogether,  though  some  State  branches 
remained  alive. 

Colonization  Society. — In  1801,  Jefferson  and  Governor 
James  Monroe,  of  Virginia,  had  considerable  correspon- 
dence on  the  subject  of  colonizing  free  blacks  out  of 
the  country.  In  the  autumn  of  1816  a  society  for  this 
purpose  was  organized  in  Princeton,  New  Jersey.  De- 
cember 23,  1816,  by  resolution,  the  Virginia  Legislature 
commended  the  matter  to  the  attention  of  the  General 
Government,  and  a  few  days  afterwards  the  society  was 
re-organized  at  Washington  as  the  "National  Coloniza- 
tion Society,"  its  president  being  Bushrod  Washington, 
and  its  organ  The  African  Repository. 

Its  expressed  object  was  to  encourage  emancipation  by 
procuring  a  place  outside  of  the  United  States,  preferably 
in  Africa,  to  which  free  negroes  could  be  aided  in  emi- 
grating. Its  indirect  object  was  to  rid  the  South  of  the 
free  black  population,  which  had  already  become  a  nui- 
sance. Its  branches  spread  into  almost  every  State,  and 
for  fourteen  years  its  organization  was  warmly  furthered 
by  every  philanthropist  in  the  South  as  well  as  in  the 
North.  Henry  Clay,  Charles  Carroll,  and  James  Madi- 
son, in  the  South,  were  as  hearty  colonizationists  as 
Bishop  Hopkins,  Rufus  King,  President  Harrison,  and 
Dr.  Channing,  in  the  North. 

And  it  is  noteworthy  that,  although  the  society  made 
no  real  attack  on  slavery,  as  an  institution,  nearly  every 
person  noted  after  1831  as  an  Abolitionist  was  before  that 
year  a  colonizationist.  Benjamin  Lundy's  travels  through 


The  Abolition  Agitation 

North  America  were  for  the  purpose  of  finding  a  location 
for  a  free  black  colony  in  Texas  or  elsewhere  in  Mexico. 
James  G.  Birney  was  for  some  time  the  society's  agent 
and  superintendent  for  Alabama  and  Tennessee.  Gerrit 
Smith,  the  Tappans,  and  many  others,  began  their  career 
as  colonizationists  and  ended  it  as  Abolitionists. 

Liberia. — At  first  free  negroes  were  sent  to  the  British 
colony  of  Sierra  Leone.  In  1820  the  society  tried  and 
became  dissatisfied  with  Sherbroke  Island,  and  December 
15,  1821,  a  permanent  location  was  purchased  at  Cape 
Mesurado.  In  1847,  the  colony  declared  itself  an  inde- 
pendent republic  under  the  name  of  Liberia,  its  capital 
being  Monrovia. 

II.  IMMEDIATE  ABOLITION  (1830-60). —  In  1820-30 
William  Lloyd  Garrison,  a  Massachusetts  printer,  en- 
gaged with  Lundy  in  publishing  The  Genius  of  Universal 
Emancipation,  at  Baltimore,  flung  a  firebrand  into  the 
powder  magazine  so  long  covered  by  the  decorous  labors 
of  colonization  and  gradual  abolition  societies.  He  in- 
sisted on  immediate  abolition,  meaning  thereby  not  in- 
stant abolition  so  much  as  the  use  of  every  means  at  all 
times  toward  abolition  without  regard  to  the  wishes  of 
slave-owners.  The  effects  were  almost  immediately  ap- 
parent. Abolition,  with  its  new  elements  of  effort  and 
intention,  was  no  longer  a  doctrine  to  be  quietly  and  benig- 
nantly  discussed  by  slave-owners,  and  from  1830  the  name 
of  Abolitionist  took  a  new  and  aggressive  significance. 

Garrison's  first  efforts  were  directed  against  the  col- 
onization society.  January  i,  1831,  he  began  publishing 
The  Liberator,  in  Boston,  and  through  its  pages  converted 
so  many  colonizationists  that  the  "New  England  Anti- 
Slavery  Society,"  founded  on  "immediate"  abolition, 
was  formed  January  i,  1832.  In  1833  Garrison  visited 
England,  and  secured  from  Wilberforce,  Zachary  Macau- 
lay,  Daniel  O'Connell,  and  other  English  abolitionists,  a 
condemnation  of  the  colonization  society. 


The  Slavery  Controversy 

In  December,  1833,  tne  "American  Anti-Slavery  So- 
ciety" was  formed  in  Philadelphia  by  an  abolition  con- 
vention, Beriah  Green  being  president,  and  Lewis  Tappan 
and  John  G.  Whittier  secretaries.  From  this  time  the 
question  became  of  national  importance.  Able  and  ear- 
nest men,  such  at  Theodore  D.  Weld,  Samuel  J.  May, 
and  Wendell  Phillips,  traversed  the  Northern  States  as 
the  agents  of  the  national  society,  founding  State  branches 
and  lecturing  everywhere  on  abolition.  The  consequent 
indignation  in  the  South  found  a  response  in  the  North 
with  many  who  saw  that  the  South  would  never  willingly 
accept  "immediate"  abolition,  and  that  the  continuance 
of  the  abolition  agitation  would  involve  sectional  conflict, 
and  perhaps  a  convulsion  which  would  destroy  the  Union. 

Abetted  or  tacitly  countenanced  by  this  class,  a  more 
ignorant  and  violent  class  at  once  began  to  break  up  abo- 
lition meetings  by  mob  violence.  In  Connecticut,  in 
1833,  Miss  Prudence  Crandall,  of  Canterbury,  Windham 
County,  opened  her  school  to  negro  girls.  The  Legis- 
lature, by  act  of  May  24,  1833,  forbade  such  schools,  and 
Miss  Crandall  was  imprisoned  under  the  act.  As  this 
was  ineffectual,  she  was  ostracized  by  her  neighbors,  and 
finally,  by  arson  and  violence,  her  school  was  broken  up. 
In  the  autumn  of  1834,  George  Thompson,  who  had  been 
instrumental  in  securing  British  emancipation  in  the  West 
Indies,  came  to  Boston,  and  for  a  year  lectured  through- 
out the  North.  He  was  denounced  as  a  paid  agent  of 
the  British  Government  for  the  destruction  of  the  Union, 
was  mobbed,  and  finally  escaped  from  Boston  in  disguise, 
in  November,  1835.  For  some  years  abolition  riots  were 
epidemic  throughout  the  North.  November  7,  1837, 
Elijah  P.  Lovejoy,  a  Presbyterian  minister,  who  had 
established  an  abolition  newspaper  in  Alton,  Illinois,  was 
mobbed  and  shot  to  death.  May  17,  1838,  in  Philadel- 
phia, Pennsylvania  Hall,  an  abolitionist  building,  dedi- 
cated three  days  before,  was  burned  by  a  mob.  Abolition 


The  Abolition  Agitation  47 

riots  then  became  only  sporadic,  but  never  ceased  entirely 
until  1861. 

In  the  South  the  import  of  the  single  word  "imme- 
diate" was  instantly  perceived.  By  unofficial  bodies 
rewards  were  offered  for  the  capture  of  prominent  Abo- 
litionists, a  suspension  of  commercial  intercourse  with  the 
North  was  threatened,  and  Northern  legislatures  were 
called  upon  to  put  down  abolition  meetings  by  statute. 
Southern  grand  juries  indicted  several  Abolitionists,  and, 
when  the  accused  naturally  declined  to  appear  for  trial, 
their  extradition  as  "fugitives  from'  justice"  was  de- 
manded by  the  State  Governor,  but  without  success. 

The  anti-slavery  society  had  been  quick  to  take  advan- 
tage of  the  United  States  mails  as  an  easy  and  secure 
means  of  introducing  its  publications  into  the  South, 
where  the  society's  private  agents  would  have  had  short 
shrift.  Remonstrances  were  at  once  sent  to  the  Post- 
master-General against  this  use  of  the  mails,  and  he,  while 
he  regretted  his  official  inability  to  interfere,  gave  South- 
ern postmasters  a  strong  hint  that  they  would  do  well  to 
settle  the  difficulty  by  rejecting  abolitionist  publications 
from  the  mails.  President  Jackson,  in  his  message  of 
December  2,  1835,  requested  Congress  to  pass  a  law  for- 
bidding the  circulation  of  abolitionist  publications  in 
the  mails.  A  bill  to  this  effect  was  introduced  in  the 
Senate,  carried  just  far  enough  to  compel  Van  Buren,  a 
candidate  for  the  Presidency,  to  take  open  ground  in  its 
favor,  and  then  lost.  In  its  stead,  the  care  of  abolition 
documents  was  left,  with  excellent  success,  to  the  States 
and  the  postmasters. 

Congress,  in  accepting  the  District  of  Columbia,  had 
re-enacted  the  whole  body  of  Virginia  and  Maryland  law, 
and  thus  left  slavery  in  full  existence;  but  few  persons 
seem  to  have  denied  the  power  of  Congress  to  abolish 
slavery  in  the  District  at  will.  From  February,  1833, 
a  vast  number  of  petitions  were  introduced,  praying 


48  The  Slavery  Controversy 

Congress  to  abolish  slavery  in  the  District,  and,  after 
1836,  to  abolish  the  "gag  rules  "  by  which  the  House  had 
resolved  to  lay  all  such  petitions  on  the  table  without 
consideration.1 

The  Garrisonian  Abolitionists  were,  from  the  first,  the 
radical  wing.  They  believed  in  no  union  with  slave- 
holders; they  declared  the  Constitution  "a  league  with 
death  and  a  covenant  with  hell,"  on  account  of  its  slavery 
compromises,  and  for  this  reason  refused  to  vote,  hold 
office,  or  recognize  the  Government;  they  attacked  the 
churches  freely  and  angrily,  for  sympathy  with  slavery ; 
they  made  the  public  speaking  of  female  members  a 
prominent  part  of  their  work ;  and  woman's  rights,  free 
love,  community  of  property,  and  every  novel  social 
theory,  found  among  them  the  first  and  most  sympa- 
thetic audience. 

Many  who  would  willingly  have  joined  in  opposition 
to  slavery  were  repelled  by  dread  of  the  odium,  theo- 
logical and  social,  consequent  upon  a  public  identification 
with  Garrisonian  license  of  thought,  speech,  and  action ; 
and  a  large  and  growing  element  in  the  American  Anti- 
Slavery  Society  felt  that  its  influence  was  thus  impaired. 
In  1838  the  annual  report  of  the  society  made  the  sug- 
gestion that  Abolitionist  candidates  for  office  should  be 
nominated  and  supported.  On  this  convenient  rock  the 
society  split  into  two  parts  in  the  following  year.  The 
political  Abolitionists,  including  Birney,  the  Tappans, 
Gerrit  Smith,  Whittier,  Judge  Jay,  Edward  Beecher, 
Thomas  Morris,  and  others,  seceded  and  left  the 
original  society  name  and  organization  to  the  Gar- 
risonians,  who  at  once  became,  in  the  opinion  of  the 
seceders,  "a  woman's  rights,  non-government,  anti- 
slavery  society." 

In  1840  the  seceders  organized  the  "American  and 
Foreign  Anti-Slavery  Society,"  and  under  this  name 

1  See  Petition. 


The  Abolition  Agitation  49 

prosecuted  their  work  with  more  success  than  the  original 
society  of  irreconcilables. 

The  Liberty  Party. — November  13,  1839,  a  convention 
of  Abolitionists  met  at  Warsaw,  N.  Y.,  and  incidentally 
nominated  James  G.  Birney  for  President,  and  Francis  J. 
Lemoyne,  of  Pennsylvania,  for  Vice- President.  Birney 
had  been  a  slaveholder  in  Kentucky  and  Alabama,  and 
was  now  corresponding  secretary  of  the  national  society. 
These  nominations  were  confirmed  by  a  national  conven- 
tion at  Albany,  April  i,  1840,  mainly  composed  of  New 
York  delegates,  which  adopted  the  name  of  the  "Liberty 
party."  The  nominees  declined  the  nomination,  but  re- 
ceived 7059  votes  in  the  presidential  election  of  1840, 
ranging  from  forty-two  in  Rhode  Island  to  2798  in  New 
York.  Liberty  party  tickets  were  now  put  forth  in  vari- 
ous local  elections,  and  the  political  Abolitionists  went 
into  training  for  the  election  of  1844. 

August  30,  1844,  the  Liberty  party's  national  conven- 
tion met  at  Buffalo.  Clay  had  made  public,  August 
1 6th,  a  temporizing  letter  to  the  effect  that  he  "would 
be  glad  to  see"  Texas  annexed  at  some  future  day.  His 
letter  cut  off  the  slight  previous  possibility  that  the 
Buffalo  convention  might  be  induced  to  refrain  from  nom- 
inations. Birney  and  Thomas  Morris  of  Ohio  were  nom- 
inated, and  an  active  canvass  was  begun,  quite  as  much 
against  Clay  as  against  Polk.  In  the  presidential  election 
of  1844,  Birney  and  Morris  received  62,300  votes,  all  in 
Northern  States,  ranging  from  107  in  Rhode  Island  to 
15,812  in  New  York. 

Had  the  Buffalo  convention  refrained  from  nomina- 
tions this  vote  would  have  gone  to  Clay;  at  the  least, 
it  could  not  have  gone  to  Polk.  Clay  would  thus  have 
had  a  popular  majority  in  the  Union,  and  the  elec- 
toral votes  of  Michigan  and  New  York  would  have  gone 
to  him  instead  of  to  Polk,  giving  Clay  146  and  Polk  129 
electoral  votes. 

VOL.  II. — 4. 


50  The  Slavery  Controversy 

The  Liberty  party's  first  appearance  in  national  politics 
had  therefore  resulted  in  the  election  of  Polk,  the  an- 
nexation of  Texas,  and  the  addition  of  a  vast  amount  of 
slave  soil  to  the  United  States.  But  it  seems  also  to  have 
convinced  the  thinking  Abolitionists  that  a  union  of  the 
Northern  voters  in  favor  of  abolition,  pure  and  simple, 
was,  as  yet,  impossible.  Slavery  restriction,  the  exclu- 
sion of  slavery  from  the  Territories  lately  acquired  from 
Mexico,  offered  a  more  promising  field,  and  the  Aboli- 
tionists, therefore,  in  the  next  two  presidential  elections 
voted  the  ticket  of  the  Free  Soil  party.  In  1856  and 
subsequent  years,  they  followed  the  fortunes  of  the  Re- 
publican party,  which  was  also  based  on  slavery  restriction, 
but  they  always  retained  a  semi-detached  organization, 
acting  rather  as  auxiliaries  than  as  an  integral  portion  of 
the  Republican  party. 

Underground  Railroad. — During  the  period  1850-60, 
the  most  active  exertions  of  the  Abolitionists  were  cen- 
tred in  assisting  fugitive  slaves  to  reach  places  of  safety 
in  Canada.1  From  the  border  of  the  slave  States  to 
Canada,  chains  of  communication  were  formed  by  per- 
sons living  about  a  day's  journey  apart.  These  were 
constantly  engaged  in  secreting  runaways,  providing 
them  with  outfits,  and  passing  them  on  to  the  next 
post,  or  in  bringing  back  intelligence  of  those  who  had 
already  escaped.  In  addition  to  these  duties,  committees 
in  the  larger  cities  were  busied  in  providing  for  the 
rescue,  by  law  or  by  force,  of  captured  slaves  from  the 
hands  of  the  officers.  The  whole  organization  was  com- 
monly known  as  the  "Underground  Railroad." 

III.  FINAL  ABOLITION  (1860-65).— The  secession  of  a 
number  of  Southern  States  in  1 860-61,  and  the  establish- 
ment of  a  de  facto  government  in  the  South,  was  welcome 
to  the  extreme  Abolitionists,  who  rejoiced  to  be  rid  of 
the  slaveholders  and  of  political  union  with  them.  But 
1  See  Fugitive  Slave  Laws. 


The  Abolition  Agitation 

the  first  shock  of  actual  warfare  brought  to  the  surface 
an  intense  determination  throughout  the  North  and  West 
that  secession  should  not  be  allowed  to  become  an  ac- 
complished fact. 

The  ensuing  war1  was  begun  in  the  spirit  of  the  Con- 
gressional resolution  of  July,  1861,  that  the  war  "was  not 
prosecuted  with  the  purpose  of  interfering  with  the  estab- 
lished institutions  of  the  Southern  States."  But  the 
Southern  leaders  had  not  taken  into  account  the  fact  that 
their  system  of  slavery  offered  a  fair  mark  for  confiscation 
by  an  enemy  which  they  could  in  no  way  retaliate.  This 
species  of  warfare  was  early  begun  by  the  Federal  Gov- 
ernment. The  act  of  August  6,  1861,  forfeited  all  claim, 
by  the  master,  to  the  services  of  slaves  employed  in  arms 
or  labor  against  the  Government. 

This  was  not  strictly  a  confiscation,  but  only  a  bar  to 
proof  of  ownership.  No  blow  at  slavery,  as  an  institu- 
tion, was  intended,  and  when  proclamations  abolishing 
slavery  were  issued  by  Gen.  J.  C.  Fremont,  in  Missouri, 
August  30,  1861,  and  by  Gen.  David  Hunter,  in  South 
Carolina,  May  9,  1862,  they  were  promptly  disavowed  by 
the  President.  But  the  next  session  of  Congress,  1861- 
62,  saw  a  more  decidedly  anti-slavery  feeling.  An  addi- 
tional article  of  war,  March  13,  1862,  prohibited  the  army 
from  returning  fugitive  slaves;  various  other  acts  were 
passed  to  hinder  the  rendition  of  fugitive  slaves  in  the 
Northern  States;  slavery  in  the  Territories*  was  abol- 
ished, June  igth;  and  the  act  of  July  i/th  freed  the 
captured,  deserted,  or  fugitive  slaves  of  all  persons  en- 
gaged in  rebellion,  and  authorized  the  employment  of 
negro  soldiers.  The  fugitive  slave  laws  were  not  finally , 
abolished  until  June  28,  1864.  In  all  these  provisions 
no  invasion  of  slavery  as  a  State  institution  was  made ; 
all  were  meant  as  blows  at  the  tender  spot  of  the  Con- 
federacy. 

1  See  Rebellion.  *  See  Wilmot  Proviso. 


52  The  Slavery  Controversy 

*~S 

The  President's  own  wish  was  at  first  for  compensated 
emancipation,  and,  in  accordance  with  his  special  message 
of  March  6th,  a  joint  resolution  of  April  10,  1862,  de- 
clared that  the  United  States  ought  to  co-operate  with 
any  State  which  should  adopt  gradual  "abolishment" 
of  slavery,  by  paying  the  State  for  the  slaves  emanci- 
pated. 

The  act  of  April  16,  1862,  abolished  slavery  in  the  Dis- 
trict of  Columbia  on  this  principle ;  but  the  border  States 
were  deaf  to  the  repeated  entreaties  of  the  President  up 
to  the  close  of  the  session  of  Congress  in  July.  In  Sep- 
tember the  President,  yielding  to  the  growing  anti-slavery 
feeling  in  the  North,  issued  his  preliminary  proclamation, 
followed,  January  i,  1863,  by  the  Emancipation  Procla- 
mation. But  this,  by  its  terms,  did  not  affect  the  slaves 
in  loyal  States,  or  within  the  Federal  lines,  nor  did  it 
affect  the  principle  of  slavery  even  in  the  rebellious 
States.  Had  the  war  ended  without  further  action 
against  slavery,  every  slave  in  the  rebellious  States  would, 
indeed,  have  been  a  free  man,  but  there  would  have  been 
no  bar  to  the  immediate  importation  of  fresh  supplies  of 
slaves  from  the  States  where  slavery  had  not  been 
abolished. 

^  In  his  message  of  December  i,  1862,  the  President 
again  brought  up  his  favorite  project.  He  now  recom- 
mended the  adoption  of  three  amendments  to  the  Consti- 
tution, providing  (i)  for  the  issue  of  bonds  to  compensate 
States  which  should  abolish  slavery  before  1900;  (2)  for 
the  validation  of  the  Emancipation  Proclamation  and  kin- 
dred measures;  and  (3)  for  colonizing  free  negroes  out  of 
the  country.  Bills  to  compensate  Missouri  and  Maryland 
for  abolishing  slavery  were  introduced  by  members  from 
those  States  early  in  1863,  and  received  favorable  votes 
in  both  Houses;  but  the  shortness  of  the  session  pre- 
vented their  final  passage.  In  West  Virginia,  by  con- 
stitutional amendment  adopted  March  26,  1862,  gradual 


The  Abolition  Agitation  53 

emancipation  after  July  4,  1863,  was  secured.  In  Mis- 
souri the  State  convention,  which  had  originally  been 
called  to  consider  an  ordinance  of  secession,  was  re- 
convened, and  passed,  June  24,  1863,  an  ordinance  of 
emancipation,  taking  effect  gradually  after  July  4,  1870. 
Congress,  by  act  of  February  24,  1864,  emancipated 
negro  soldiers,  a  compensation  of  $300  for  each  being 
paid  to  loyal  owners,  and  by  act  of  March  3,  1865,  eman- 
cipation was  extended  to  the  wives  and  children  of  such 
soldiers.  This  measure  closed  the  record  of  attempts  at 
gradual,  partial,  or  compensated  abolition  of  slavery. 

October  12-13,  1864,  Maryland  adopted  a  new  consti- 
tution whose  twenty-third  article  finally  abolished  slavery 
in  the  State.  Ordinances  of  immediate  emancipation, 
without  submission  to  popular  vote,  were  passed  Feb- 
ruary 13,  1864,  by  a  convention  of  delegates  from  those 
portions  of  Virginia  within  the  Federal  lines,  and,  January 
n,  1865,  by  a  new  State  convention  in  Missouri. 

A  recapitulation  of  all  these  partial  assaults  on  slavery 
will  make  it  apparent  that,  after  January  n,  1865,  slavery 
had  a  legal  existence  only  in  the  States  of  Kentucky  and 
Delaware,  if  the  action  of  Maryland,  secured  by  soldiers' 
votes,  and  of  irrregular  conventions  in  Virginia,  Tennes- 
see, Louisiana,  and  Arkansas  were  valid.  To  resolve  all 
doubts,  and  give  the  corpse  of  slavery  a  legal  burial,  a 
constitutional  amendment  in  1865  '  was  passed  and  rati- 
fied, by  which  slavery  and  involuntary  servitude,  except 
for  crime,  was  abolished  within  the  United  States. 

The  same  year  saw  the  cessation  of  the  publication  of 
The  Liberator,  and  the  dissolution  of  the  American  Anti- 
Slavery  Society.  The  work  of  both  had  been  done,  and 
done  mainly,  after  all,  by  the  "political"  Abolitionists. 
By  yielding  the  impossible  point  of  present  abolition  in 
the  States,  and  joining  with  the  Republicans  in  the  de- 
mand for  the  restriction  of  slavery  to  State  limits,  they 

1  See  Constitution. 


54  The  Slavery  Controversy 

had  aided  in  bringing  on  a  conflict  of  a  slaveholding 
section  against  the  Federal  Union. 

In  such  a  conflict  it  was  inevitable  that  every  blow  at 
rebellion  should  rebound  upon  slavery.  Had  the  conflict 
been  postponed  until  the  North  and  West  could  have 
been  united  in  the  ultra-Garrisonian  object  of  a  crusade 
against  slavery,  it  would  not  have  come  until  the  popu- 
lation and  destructive  power  of  both  sections  had  grown 
so  large  that  the  peaceable  formation  of  two  or  more 
nationalities  on  this  continent  would  have  been  impera- 
tively demanded  by  humanity.1 

PETITION." — The  first  amendment  to  the  Constitution 
prohibits  Congress  from  making  any  law  to  abridge  "the 
right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  Government  for  a  redress  of  grievances."  The  right 
to  petition  Congress  is  therefore  not  derived  from  the 
Constitution,  but  secured  by  it.  Of  course  the  right  to 
offer  a  petition  implies  the  duty  of  Congress  to  receive  it, 
without  which  the  petition  would  lack  its  most  essential 
element.  Nevertheless,  from  1835  until  1844,  this  duty 
of  Congress  was  more  or  less  strenuously  denied  by 
Southern  members  in  the  case  of  petitions  for  the  abo- 
lition of  slavery  and  the  slave  trade  in  the  District  of 
Columbia. 

February  u,  1790,  a  petition  was  offered,  signed  by 
Franklin,  as  president  of  the  Pennsylvania  Abolition 
Society,  praying  for  the  immediate  prohibition  of  the 
African  slave  trade.  This  prohibition  could  not  consti- 
tutionally be  effected  until  1808;  nevertheless,  after  de- 
bate, it  was  received  and  referred  by  a  vote  of  43  to  14. 
Madison  and  other  members  urged  "the  commitment  of 
the  petition  as  a  matter  of  course,"  so  that  "no  notice 
would  be  taken  of  it  out  of  doors."  This  purpose  was 
accomplished  then  and  afterward;  as  long  as  petitions 

1  See  Slavery  ;  Emancipation  Proclamation  ;  Rebellion  ;  United  States. 
*  In  U.  S.  History. 


The  Abolition  Agitation  55 

were  received  and  referred,  the  action  of  the  petitioners 
there  ended. 

Very  few  anti-slavery  petitions  were  offered  for  forty 
years,  and  those  few  were  against  slavery  in  general. 
The  only  exception  was  the  petition  of  Warner  Mifflin  in 
1792,  which  was  rejected  on  the  ground  that  it  was  not  a 
petition,  and  concluded  with  no  specific  prayer.  This 
objection  would  not  lie  against  the  new  series  of  petitions 
which  were  brought  out  by  the  agitation  for  immediate 
abolition  which  began  in  1830-31.  These  prayed  that 
Congress,  to  which  the  Constitution  had  given  the  ex- 
clusive power  of  legislation  for  the  District  of  Columbia, 
would  exercise  it  in  prohibiting  slavery  therein.  At  first, 
in  December,  1831,  when  they  were  referred  to  the  com- 
mittee on  the  District  of  Columbia,  the  committee  re- 
ported formally  that  the  prayer  of  the  petitioners  should 
not  be  granted. 

As  the  petitions  became  more  numerous,  the  committee 
ceased  to  report,  and  its  room  became  "the  lion's  den 
from  which  there  were  no  foot-prints  to  mark  their  re- 
turn." In  February,  1835,  there  were  some  complaints 
of  this  mode  of  procedure,  and  requests  for  a  special  com- 
mittee, but  these  were  not  heeded.  The  peace  was  not 
disturbed  until  the  following  December. 

Pinckneys  Resolutions. — In  December,  1835,  the  peti- 
tions began  to  come  in  again,  and  the  House  of  Represen- 
tatives showed  a  new  disposition  toward  them  by  laying 
them  on  the  table  by  overwhelming  votes.  This,  how- 
ever, was  not  enough.  February  8,  1836,  Henry  L. 
Pinckney,  of  South  Carolina,  moved  for  and  obtained  a 
suspension  of  the  rules  to  offer  three  resolutions:  I,  that 
all  the  petitions  should  be  referred  to  a  select  committee, 

2,  with  instructions  to  report  that  Congress  could  not 
constitutionally  interfere  with  slavery  in  the  States,  and 

3,  ought  not  to  do  so  in  the  District  of  Columbia. 

May  1 8th,  the  committee  reported  as  instructed,  with 


56  The  Slavery  Controversy 

an  additional  resolution  that  thereafter  all  petitions  re- 
lating in  any  way  to  slavery  or  its  abolition  should  be 
laid  on  the  table  without  action,  and  without  being 
printed  or  referred.  May  25th  the  previous  question, 
cutting  off  debate,  was  ordered  by  a  vote  of  109  to  89, 
and  the  second  of  Pinckney's  resolutions,  above  men- 
tioned, was  adopted  by  a  vote  of  182  to  9.  John  Quincy 
Adams  offered  to  prove  it  false  in  five  minutes,  but  was 
silenced.  On  the  following  day  the  third  resolution  was 
adopted,  132  to  45,  and  the  committee's  new  resolution, 
117  to  68.  Adams  refused  to  vote,  denouncing  the  reso- 
lution as  a  violation  of  the  Constitution,  of  the  rules  of 
the  House,  and  of  the  rights  of  his  constituents. 

The  first  of  the  "gag  laws  "  was  thus  put  in  force.  It 
was  renewed  in  substance,  January  18,  1837. 

Adams  at  once  became  the  champion  of  the  right  of 
petition.  In  the  adoption  of  the  rules  at  the  beginning 
of  each  Congress,  he  regularly  and  unsuccessfully  moved 
to  rescind  the ' '  gag  rule. "  He  became  the  funnel  through 
which  all  the  anti-slavery  petitions  of  the  country  were 
poured.  Within  the  next  four  years  he  records  the  offer- 
ing of  nearly  two  thousand  petitions,  including  petitions 
for  the  rescinding  of  the  gag  rule  itself,  for  the  recogni- 
tion of  Hayti,  for  expunging  the  Declaration  of  Indepen- 
dence from  the  journals,  and  for  his  own  expulsion. 
Besides  those  whose  number  he  mentions,  there  was  an 
unknown  number  of  others  presented  in  batches. 

The  most  exciting  scene  of  the  series  began  February 
6,  1837.  Adams  inquired  of  the  Speaker  whether  it  would 
be  in  order  to  present  a  petition  from  twenty-two  slaves. 
The  disorderly  House,  catching  but  a  hazy  notion  of  the 
inquiry,  at  once  lost  its  head.  Suggestions  to  expel 
Adams  for  having  attempted  to  offer  a  petition  from 
slaves,  to  censure  him  for  contempt  of  the  House,  and 
to  take  the  petition  out  and  burn  it,  were  becoming  in- 
extricably entangled,  when  Adams  for  the  first  time  re- 


The  Abolition  Agitation  57 

minded  the  Speaker  that  his  inquiry  as  to  the  propriety 
of  offering  the  petition  was  still  pending  and  un- 
answered, and  stated  also  that  the  petition  was  in  favor 
of  slavery. 

The  House  saw  that  it  had  been  outwitted,  but  it  dis- 
liked to  yield.  "What,  sir,"  said  Waddy  Thompson,  of 
South  Carolina,  "is  it  a  mere  trifle  to  hoax,  to  trifle  with, 
the  members  from  the  South  in  this  way  and  on  this  sub- 
ject? Is  it  a  light  thing,  for  the  amusement  of  others,  to 
irritate  almost  to  madness  the  whole  delegation  from  the 
slave  States?  Sir,  it  is  an  aggravation."  He  therefore 
modified  his  resolutions  into  a  censure  of  Adams  for  hav- 
ing "trifled  with  the  House,"  "by  creating  the  impres- 
sion, and  leaving  the  House  under  such  impression,  that 
the  said  petition  was  for  the  abolition  of  slavery,  when 
he  knew  that  it  was  not." 

By  various  amendments  this  was  finally  modified  into 
a  tame  resolution  that,  since  Adams  had  disclaimed  any 
effort  to  present  the  petition,  nothing  should  be  done, 
and  even  this  was  rejected.  But  before  the  final  vote, 
February  9th,  Adams  secured  his  coveted  opportunity 
for  defense,  and  his  savage  retaliation  upon  his  opponents 
in  general  and  in  particular,  interrupted  by  explanations 
and  half-hearted  denials  from  them,  made  up  one  of  the 
few  scenes  in  congressional  history,  from  1820  until  1860, 
when  the  cowing  of  an  opposition  was  the  result  of  a 
Northern  member's  speech.  From  this  time  debate  with 
Adams  was  the  most  perilous  of  undertakings. 

In  the  Senate  the  objection  to  the  reception  of  aboli- 
tion petitions  had  been  almost  simultaneous.  January  7, 
1836,  Calhoun  objected  to  the  reception  of  two  petitions 
from  Ohio  for  the  abolition  of  slavery  in  the  District  of 
Columbia,  and  four  days  afterward  he  renewed  it  upon 
a  petition  of  Pennsylvania  Quakers  to  the  same  effect. 
But  the  Senate  was  a  dangerous  place  for  such  an  ex- 
periment. No  "previous  question"  could  cut  off  debate; 


58  The  Slavery  Controversy 

Senator  after  Senator  drifted  off  to  the  perilous  questions 
involved  in  the  institution  of  slavery  itself;  and  the  result 
was  such  a  portentous  debate  as  had  never  yet  been  heard 
in  the  Senate. 

Calhoun's  point  was,  that  if  the  petition  were  couched 
in  disrespectful  language  it  could  not  be  received.  But 
in  this  there  was  a  cumulative  difficulty.  To  know  the 
language  of  a  petition  it  was  necessary  that  it  should  be 
read,  and  it  would  always  be  difficult  for  Southern  Sena- 
tors to  listen  quietly  to  petitions  in  which  their  constitu- 
ents and  themselves  were  denounced  as  pirates,  butchers, 
and  dealers  in  human  flesh.  King,  of  Georgia,  read  Cal- 
houn  a  bitter  and  well  deserved  lecture  on  this  unstates- 
manlike  policy  of  provoking  debate  on  the  petitions; 
and  Calhoun  could  only  answer  with  the  reproach  that 
King  was  destroying  Southern  unity  of  action. 

Calhoun's  course  is  one  of  the  few  evidences  of  his  lack 
of  sincerity  in  desiring  the  preservation  of  the  Union. 
A  Democratic  Northern  Senator  likened  him  to  a  pugna- 
cious farmer  in  his  State  who  was  so  anxious  for  peace 
with  his  neighbors  that  he  was  always  willing  to  fight  for 
it.  In  this  instance  Calhoun  had  abundant  opportunity 
to  agitate  for  the  suppression  of  agitation.  It  was  not 
until  March  9th  that  the  reception  was  agreed  to  by  a 
vote  of  36  to  10;  and  two  days  after,  "the  prayer  of  the 
petition  was  rejected  "  by  a  vote  of  34  to  6. 

This  halting  compromise  between  refusing  to  receive, 
and  referring  to  a  committee,  was  thereafter  the  regular 
mode  of  procedure  in  the  Senate.  It  had  no  effect  in 
checking  the  petitions,  and  renewed  and  constant  debate 
on  their  reception  kept  the  Senate  in  turmoil.  In  De- 
cember, 1837,  Clay  urged  their  reception  and  reference,  on 
the  grounds  that  they  were  evoked  mainly  by  a  feeling  in 
the  North  that  the  right  of  petition  had  been  assailed, 
and  that  it  was  "better  that  the  country  should  be  quiet 
than  the  Senate"  ;  but  his  advice  met  no  more  respectful 


The  Abolition  Agitation  59 

attention  than  the  warning  of  Buchanan  at  the  beginning, 
"Let  it  be  once  understood  that  the  sacred  right  of  peti- 
tion and  the  cause  of  the  Abolitionists  must  rise  or  must 
fall  together,  and  the  consequences  may  be  fatal." 

The  Patton  Resolution. — December  21,  1837,  in  the 
House,  John  M.  Patton,  of  Virginia,  secured  a  suspen- 
sion of  the  rules  and  the  previous  question,  and  the 
passage  of  a  resolution  to  lay  on  the  table,  without  being 
debated,  printed,  read,  or  referred,  and  without  further 
action,  all  petitions  and  papers  touching  the  abolition  of 
slavery  or  the  buying,  selling,  or  transferring  of  slaves  in 
any  State,  district,  "or  territory"  of  the  United  States. 
Adams  again  protested,  and  refused  to  vote,  but  the 
resolution  was  passed  by  a  vote  of  122  to  74. 

The  Atherton  Resolutions. — December  11,  1838,  in  the 
House,  Charles  J.  Atherton,  of  New  Hampshire,  obtained 
a  suspension  of  the  rules,  and  offered  five  resolutions. 
The  first  four  condemned  generally  any  attempts  at  the 
abolition  of  slavery  in  the  District  of  Columbia,  or  in  the 
Territories,  and  any  petitions  for  that  object;  the  fifth 
resolved  that  all  such  petitions  should  be  laid  on  the 
table,  "without  being  printed,  debated,  or  referred." 
Again,  the  previous  question  cut  off  debate,  and  the  reso- 
lutions were  passed  on  this  and  the  following  day,  the  last 
or  "gag"  resolution  having  in  its  favor  126  votes  to  73. 
The  only  apparent  result  was  the  immediate  appearance 
of  a  new  line  of  petitions  for  the  repeal  of  the  Atherton 
"settlement." 

Twenty-first  Rule. — January  21,  1840,  by  a  vote  of  114 
to  108,  the  House  adopted  as  its  twenty-first  rule,  that  no 
petition,  memorial,  resolution,  or  other  paper  praying 
the  abolition  of  slavery  in  the  District  of  Columbia  or  the 
Territories,  or  of  the  interstate  slave  trade,  should  in 
future  be  received  by  the  House,  or  entertained  in  any 
manner  whatever.  The  decrease  of  the  majority  in  favor 
of  the  repression  principle  in  this  vote  was  striking,  and 


60  The  Slavery  Controversy 

was  in  itself  an  evidence  that  the  system  could  not  endure 
very  much  longer. 

Adams  had  found  the  support  which  he  had  at  first 
lacked,  and  his  yearly  recurring  motions  to  omit  the 
twenty-first  from  the  list  of  rules  were  defeated  by  steadily 
dwindling  majorities.  The  rule,  however,  only  increased 
the  strength  of  language  of  the  petitions,  and  their  num- 
ber as  well :  34,000  signatures  had  been  affixed  to  peti- 
tions of  this  nature  in  1835-6;  110,000  in  the  session 
after  the  Pinckney  resolutions;  over  300,000  after  the 
Patton  resolutions;  and  after  the  twenty-first  rule  was 
adopted  the  signatures  to  petitions  on  all  the  cognate 
subjects  were  practically  beyond  counting. 

January  14,  1842,  another  exciting  scene  began  in  the 
House,  Adams  being  again  the  centre  of  it.  He  offered 
a  petition  from  citizens  of  Haverhill,  Massachusetts, 
praying  for  a  dissolution  of  the  Union,  and  asked  for  its 
reference  to  a  committee  to  set  forth  reasons  for  the  re- 
jection of  the  petition.  The  anger  of  the  Southern  mem- 
bers flamed  out  again.  Suggestions  were  again  made  to 
expel  Adams,  to  censure  him,  or  to  burn  the  petition. 
Adams  at  first  only  replied  by  advising  his  leading  oppo- 
nents to  "go  to  a  law  school,  and  learn  a  little  of  the 
rights  of  the  citizens  and  of  the  members  of  this  House"  ; 
but,  when  the  House  had  voted,  118  to  75,  to  take  into 
consideration  the  resolutions  of  censure  offered  by 
Thomas  F.  Marshall,  of  Kentucky,  the  spokesman  of  the 
Southern  caucus,  the  debate  was  adjourned  until  January 
28th.  From  that  day  it  continued  until  February  /th, 
with  a  virulence  surpassing  that  of  the  first.  Adams  had 
his  opponents  at  a  disadvantage,  for  many  of  them  were 
avowed  disunionists,  but  he  used  also  every  other  advan- 
tage which  could  be  used. 

The  character  of  the  whole  debate  may  be  conceived 
from  Adams's  reference  to  Wise,  of  Virginia,  his  bitterest 
opponent,  as  having  come  into  that  hall  from  the  Graves- 


The  Abolition  Agitation  (61 

Cilley  duel,  of  which  he  was  a  promoter,  "with  his  hands 
dripping  with  human  gore,  and  a  blotch  of  human  blood 
upon  his  face";  and  from  Wise's  temperate  reply  that 
"the  charge  was  as  base  and  black  a  lie  as  the  traitor  was 
base  and  black  who  uttered  it."  At  last  Adams,  worn 
out  and  almost  breathless,  but  triumphant  over  every 
assailant,  allowed  a  motion  to  "lay  the  whole  subject  on 
the  table  forever,"  and  it  was  carried  by  a  vote  of  106  to 

93- 

At  the  special  session  of  1841  Adams's  regular  motion 
to  omit  the  twenty-first  rule  had  actually  been  carried,  by 
a  vote  of  112  to  104,  on  a  motion  to  adopt  the  rules  of 
the  last  House  for  ten  days  only;  but  this  was  afterward 
reconsidered  and  lost.  Session  after  session  the  majority 
against  Adams's  motion  dwindled.  At  last,  December 
3,  1844,  the  House,  by  a  vote  of  104  to  81,  refused  to 
lay  his  motion  on  the  table,  and,  by  a  vote  of  108  to  80, 
abolished  the  twenty-first  rule.  The  ten  years'  gripe  of 
John  Quincy  Adams  upon  the  gag  system  had  choked  it 
at  last  and  forever.  Thereafter,  petitions  of  every  nature 
were  quietly  relegated  to  the  limbo  of  such  papers,  the 
committee  room. 

December  12,  1853,  the  ancient  rule  requiring  the 
presentation  of  petitions  in  the  House  was  rescinded. 
Since  that  time  petitions  have  been  delivered  to  the  clerk 
of  the  House,  indorsed  with  the  name  of  the  member 
presenting  them  and  of  the  committee  to  which  they  are 
to  be  referred.  The  clerk  then  transfers  them  to  the 
proper  committees,  and  notes  their  presentation  on  the 
journal. 

THE  "CREOLE"  CASE.'— The  brig  Creole,  with  a  cargo  of 
130  slaves,  sailed  from  Hampton  Roads  for  New  Orleans 
October  27,  1841,  this  species  of  coasting  slave  trade 
having  been  allowed  and  regulated  by  act  of  March  2, 
1807.  November  7th,  seventeen  of  the  slaves  rose,  killed 

1  In  U.  S.  History. 


62  The  Slavery  Controversy 

one  of  the  owners,  mastered  the  vessel,  and  ran  her  into 
Nassau,  where  the  authorities,  as  they  had  done  in  several 
previous  cases  of  the  kind,  set  at  liberty  all  not  expressly 
charged  with  murder.  The  Administration  demanded 
their  surrender  by  Great  Britain  on  the  ground  that  they 
were  on  United  States  soil  while  under  the  United  States 
flag,  and  were  therefore  still  property,  by  municipal  law, 
even  on  the  high  seas.  They  were  not  surrendered,  and 
the  claim  for  them  was  finally  merged  in  the  negotiations 
which  resulted  in  the  treaty  of  August  9,  1842,  for  the 
extradition  of  criminals. 
/  Giddings's  Resolutions. —  During  the  progress  of  the 
negotiations,  March  21,  1842,  J.  R.  Giddings,  of  Ohio, 
offered  a  series  of  resolutions  in  the  House  of  Represen- 
tatives which  were  the  basis  of  the  war  against  slavery 
during  the  succeeding  eighteen  years. 

They  were  in  brief  as  follows:  I.  That,  before  1789, 
each  State  had  exclusive  jurisdiction  over  the  subject  of 
slavery  in  its  own  territory.  2.  That  this  jurisdiction 
had  never  been  delegated  to  the  Federal  Government. 
3.  That  commerce  and  navigation  on  the  high  seas  were 
under  the  jurisdiction  of  the  Federal  Government.  4. 
That  slavery,  being  an  abridgment  of  the  natural  rights 
of  man,  can  exist  only  by  force  of  positive  municipal  law, 
and  is  necessarily  confined  to  the  jurisdiction  of  the 
[State]  power  creating  it.  5.  That  a  ship  belonging  to 
citizens  of  a  State  is  under  the  jurisdiction  of  the  United 
States  only,  when  it  reaches  the  high  seas.  6.  That  when 
the  Creole  left  Virginia,  the  slave  laws  of  Virginia  ceased 
to  apply  to  her  cargo.  7.  That  the  cargo,  in  resuming 
liberty,  violated  no  law  of  the  United  States.  8,  9.  That 
attempts  to  re-enslave  the  escaped  slaves,  or  to  maintain 
the  coastwise  slave  trade,  were  unauthorized  by  the  Con- 
stitution, subversive  of  the  rights  of  the  free  States,  and 
prejudicial  to  our  national  character. 

The  reading  of  these  resolutions  roused  intense  excite- 


The  Abolition  Agitation  63 

ment.  By  a  meagre  majority  the  House  ordered  the  pre- 
vious question,  cut  off  debate,  and  passed  a  resolution 
prepared  by  J.  M.  Botts,  of  Virginia,  declaring  that  the 
conduct  of  Giddings,  in  offering  resolutions  which  justi- 
fied mutiny  and  murder,  and  tended  to  complicate  the 
pending  negotiations  between  the  United  States  and 
Great  Britain,  was  "unwarranted  and  unwarrantable,  and 
deserved  the  severest  condemnation  of  the  people  of  this 
country,  and  of  this  body  in  particular." 

Giddings  resigned  his  seat,  and  was  at  once  re-elected 
by  an  overwhelming  vote,  with  instructions  from  his  dis- 
trict to  present  his  resolutions  again  and  to  press  them  to 
a  vote.  This  he  was  not  allowed  to  do :  indeed,  it  would 
seem  impossible  for  a  Democrat '  to  vote  against  the  first 
three  resolutions,  from  which  the  others  logically  follow, 
without  a  denial  of  every  tenet  of  the  party.  For  the 
remainder  of  this  Congress  "resolution  day"  was,  by 
successive  votes  of  the  House,  regularly  devoted  to  other 
business.  But  the  principle  of  the  resolutions  lived,  and 
upon  it  parties  were  reorganized  after  1850.* 

On  Petition  see  i  Benton's  Debates  of  Congress,  201, 
207 ;  13  ib.,  24(Pinckney's  resolutions),  266  (Adams's  first 
trial:  his  speech  is  at  page  283);  12  ib.,  705  (Calhoun's 
motion);  13  ib.,  566  (Patton  resolutions),  702  (Atherton 
resolutions);  142$.,  289  (twenty-first  rule);  J ay's  Miscel- 
laneous Writings,  349;  2  Calhoun's  Works,  466;  9  Adams's 
Memoir  of  J.  Q.  Adams,  350;  n  ib.,  109;  61  Niles's  Regis- 
ter, 350  (Adams's  second  trial);  14  Democratic  Review, 
303  (the  best  argument  in  favor  of  the  twenty-first  rule); 
2  Benton's  Thirty  Years'  View,  150;  I  Greeley's  Ameri- 
can Conflict,  143 ;  Giddings's  History  of  the  Rebellion,  108, 
158;  2  Wilson's  Rise  and  Fall  of  the  Slave  Power,  346; 
2  von  Hoist's  United  States,  236,  470;  Morse's  Life  of 
y.  Q.  Adams,  249,  307;  18,  22,  38  Rules  of  the  House  of 
Representatives;  speech  of  J.  Q.  Adams  on  Constitutional 

1  See  Construction.  *  See  Slavery. 


64  The  Slavery  Controversy 

War  Power  over  Slavery  in  the  States;  2  American  Po- 
litical Orations,  speeches  of  Calhoun  and  Clay. 

On  Creole  case  see  2  von  Hoist's  United  States,  479; 
2  Benton's  Thirty  Years  View,  409;  i  Wheeler's  History 
of  Congress,  275  ;  Giddings's  History  of  the  Rebellion,  173  ; 
6  Webster's  Works,  303.  The  previous  cases  of  the  kind 
will  be  found  in  2  Benton's  Thirty  Years'  View,  432-434, 
and  the  resolutions  in  full  in  Giddings's  History  of  the 
Rebellion,  1 80.  The  whole  affair,  pregnant  as  it  was  with 
future  results,  is  entirely  ignored  in  14  Benton's  Debates 
of  Congress.  The  act  of  March  2,  1807,  is  in  2  Stat.  at 
Large,  426. 

References  on  Abolition  agitation :  I.  See  von  Hoist's 
United  States,  277,  etc. ;  Wilson's  Rise  and  Fall  of  the 
Slave  Power ;  Greeley's  American  Conflict ;  The  Afri- 
can Repository  ;  Jay's  Miscellaneous  Writings  on  Slavery  ; 
Earle's  Life  of  Benjamin  Lundy  ;  Goodell's  Slavery 
and  Anti-Slavery.  II.  See  Garrison's  Speeches ;  May's 
Recollections ;  Johnson's  Recollections;  Giddings's  Speeches 
in  Congress,  Exiles  of  Florida,  and  History  of  the  Re- 
bellion; Beriah  Green's  Sketch  of  Birney;  Charles  Os- 
born's  Journal ;  Lovejoy's  Life  of  Lovejoy;  Tappan's 
Life  of  Tappan ;  Child's  Life  of  Isaac  T.  Hopper; 
Frothingham's  Life  of  Gerrit  Smith;  Gerrit  Smith's 
Speeches  in  Congress;  Still's  Underground  Railroad ;  and 
authorities  under  articles  referred  to.  III.  See  Ray- 
mond's Life  of  Lincoln;  Arnold's  Life  of  Lincoln;  Poore's 
Federal  and  State  Constitutions ;  McPherson's  Political 
History  of  the  Rebellion  ;  W.  H.  Smith's  Political  History 
of  Slavery;  Woodburn's  Political  Parties  and  Party  Prob- 
lems in  the  United  States  ;  Curtis's  History  of  the  Republi- 
can Party ;  Wendell  Phillips's  oration  on  The  Philosophy 
of  Abolition ;  Johnston  and  Woodburn's  American  Po- 
litical Orations;  works  of  Wm.  Ellery  Channing,  on 
Slavery,  Abolitionists ;  Julian's  Life  of  Giddings ;  later 
^authorities  under  Rebellion  and  Slavery ;  and  authorities 


The  Abolition  Agitation  65 

under  Emancipation  Proclamation.  For  acts  of  August 
6,  1861 ;  July  17,  1862,  and  April  16,  1862,  see  12  Stat. 
at  Large,  319  (§  4),  589  (§§  9-11),  37^.  For  acts  of  Feb- 
ruary 24,  1864,  and  March  3,  1865,  see  13  Stat.  at  Large 
(38th  Cong.),  6  (§  24),  571.  For  final  abolition  of  slavery 
in  Territories,  see  Wilmot  Proviso. 

TOL.  II. — 5 


CHAPTER   III 

TEXAS  AND    OREGON 

I.  TEXAS. — The  inevitable  result  of  the  two  previous 
annexations '  was  the  annexation  of  Texas.  It  had  been 
persistently  claimed  before  1763  by  Spain;  and  France, 
though  claiming  it  as  part  of  Louisiana,  had  made  only  a 
few  futile  attempts  to  colonize  it.  It  had  been  one  of 
the  ultimate  objects  of  the  Burr  conspiracy.  During 
Wilkinson's  hasty  operations  to  defend  New  Orleans 
against  Burr  in  October,  1806,  he  had  agreed  with  the 
Spanish  commander  upon  the  Sabine  as  a  provisional 
boundary  between  the  Spanish  and  the  American  terri- 
tory, and  upon  the  consequent  suspension  of  the  Ameri- 
can claim  to  Texas  as  part  of  Louisiana ;  and  the  treaty 
of  1 8 19"  made  this  boundary  permanent.  Considerable 
opposition,  of  which  resolutions  offered  by  Henry  Clay 
were  an  expression,  was  manifested  against  the  "aliena- 
tion "  by  treaty  of  soil  to  which  the  United  States  had  a 
claim,  but  the  annexation  of  Florida  covered  all  dissatis- 
faction in  the  South,  and  when  Mexico's  revolt  was  suc- 
cessful, by  the  treaty  of  Cordova,  February  24,  1821, 
"Texas  and  Coahuila  "  became  one  of  the  states  of  the 
Mexican  republic. 

The  Missouri  struggle  had  shown  that  the  union  of 
the  two  sections  in  the  United  States  was  as  yet  only 
factitious;  that  the  operation  of  economic  laws  would 

1  See  Louisiana  and  Florida.  *  See  p. 

66 


Texas  and  Oregon  67 

inevitably  drive  immigration  away  from  slave  soil  and 
toward  the  free  territory  of  the  Northwest;  and  that, 
consequently,  in  the  sectional  race  for  the  manufacture 
of  new  States  and  the  control  of  the  Senate,  the  South 
was  doomed  to  defeat  if  the  Sabine  remained  as  the 
boundary.  Therefore,  so  early  as  1821,  the  adventurous 
and  lawless  population  of  the  Southwest,  under  the 
direction  or  with  the  silent  sympathy  of  far-seeing 
Southern  leaders,  began  systematic  efforts  to  pierce  the 
barrier  of  Mexican  exclusiveness  and  effect  an  entrance 
into  Texas. 

Under  the  guise  of  persecuted  American  Roman 
Catholics,  enterprising  men  obtained  land  grants  from 
Mexico  and  filled  them  with  settlers  who  had  at  least  as 
much  reverence  for  Catholicism  as  for  any  other  form  of 
religion.  Offers  were  made  in  1827  and  1829  by  Clay 
and  Van  Buren,  successively  Secretaries  of  State,  of 
$1,000,000  and  $5,000,000  for  Texas,  but  without  effect. 
In  1833  Texas  had  grown  so  far  in  population  that  it  dis- 
dained to  be  longer  a  part  of  Coahuila,  and  by  conven- 
tion, April  ist,  formed  a  Mexican  state  constitution  of 
its  own. 

In  1835  the  Mexican  congress  abolished  all  the  state 
constitutions,  and  created  a  dictator;  and,  March  2,  1836, 
Texas  put  into  practice  the  doctrine  of  secession  by  de- 
claring its  independence  of  Mexico.  After  a  brief  war, 
marked  by  the  inhuman  Mexican  massacres  of  Goliad  and 
the  Alamo,  Houston,  the  Texan  commander,  with  700 
men,  met  Santa  Anna,  the  Mexican  President,  with  5000 
men,  at  the  San  Jacinto,  April  loth,  and  totally  defeated 
him.  Santa  Anna,  a  captive  and  in  mortal  fear,  was 
glad  to  obtain  his  freedom  by  signing  a  treaty  which 
acknowledged  the  independence  of  the  republic  of  Texas, 
but  which  Mexico  naturally  refused  to  ratify.  In  March, 
1837,  the  United  States,  and,  soon  after,  England, 
France,  and  Belgium,  recognized  the  new  republic,  which 


68  The  Slavery  Controversy 

may  thereafter  be  fairly  considered  independent,  though 
never  acknowledged  as  such  by  Mexico. 

The  finances  of  Texas  early  fell  into  extreme  disorder. 
Her  government  had  borrowed  and  expended  so  reck- 
lessly that  borrowing  would  no  longer  avail,  and  its 
operations  had  almost  come  to  a  standstill  for  sheer 
want  of  money.  Under  these  circumstances  annexation 
was  as  desirable  to  Texas  as  to  the  South,  and  in  August, 
1837,  by  her  Minister  at  Washington,  Texas  made  appli- 
cation to  the  executive  for  membership  in  the  United 
States.  A  proposition  to  that  effect  was  introduced  in 
the  Senate,  by  Preston,  of  South  Carolina,  and  tabled 
by  a  vote  of  24  to  14. 

The  matter  then  rested  for  some  years,  and  Texas, 
undisturbed  by  Mexico's  continued  refusal  to  recognize 
her,  proceeded  in  the  prodigal  sale  and  distribution 
throughout  the  South  and  Southwest  of  a  vast  mass  of 
land  warrants,  whose  owners  were  at  once  converted  into 
advocacy  of  Texas  and  annexation.  January  10,  1843, 
Gilmer,  Member  of  Congress  from  Virginia,  in  a  letter  to 
a  Baltimore  newspaper,  eloquently  appealed  to  the  people 
to  annex  Texas  in  order  to  forestall  Great  Britain  in  so 
doing;  and  his  appeal  was  seconded  by  the  legislatures 
of  various  Southern  States. 

From  this  time  Texas  annexation  became  a  game,  skil- 
fully played  in  partnership  by  the  Southern  politicians, 
who  wished  to  increase  the  number  of  Southern  States, 
and  the  Texas  land  and  scrip  speculators,  who  wished  to 
make  their  worthless  ventures  profitable.  A  letter  was 
obtained  from  ex-President  Jackson,  March  12,  1843, 
warmly  counselling  immediate  annexation. 

The  Democratic  National  Convention  was  put  off  from 
December,  1843,  until  May,  1844,  and  in  the  interval 
Van  Buren,  the  chosen  candidate  of  the  Northern  De- 
mocracy, was  formally  questioned  by  letter  as  to  his 
position  on  annexation.  April  20,  1844,  Van  Buren  de- 


Texas  and  Oregon  69 

clared  against  it,  as  also  did  Clay,  the  leading  Whig 
candidate,  April  i/th.  May  i/th,  the  Democratic  con- 
vention met  at  Baltimore,  and  as  a  preliminary  adopted 
the  rule  of  the  conventions  of  1832  and  1835,  which  has 
since  been  the  rule  in  all  Democratic  conventions,  that  a 
nomination  should  only  be  by  a  two  thirds  vote.  This 
made  Van  Buren's  nomination  impossible,  and  insured  to 
the  Southern  minority  the  ultimate  choice  of  an  annexa- 
tion candidate.  On  the  eighth  ballot  Van  Buren  was 
withdrawn,  having  fallen  from  146  to  104  out  of  266 
votes,  and  on  the  next  ballot  Polk  was  nominated.  Not 
only  was  the  candidate  strongly  in  favor  of  immediate 
annexation ;  the  platform  also  warmly  demanded  the  re- 
occupation  of  Oregon,  and  the  ^-annexation  of  Texas. 

In  the  meantime,  an  annexation  treaty  had  actually 
been  concluded  with  Texas,  April  12,  1844,  by  Calhoun, 
whom  Tyler,  in  the  course  of  his  drift  back  toward  the 
Democratic  party,  had  called  into  his  Cabinet,  as  Secre- 
tary of  State,  and  who  had  declared  his  only  object  in 
the  Cabinet  to  be  the  annexation  of  Texas ;  but  it  was 
rejected  by  the  Senate  by  a  vote  of  16  ayes  to  35  nays. 

This  treaty  fixed  the  western  boundary  of  Texas,  as 
Texas  herself  had  done  in  1836,  at  the  Rio  Grande,  thus 
taking  in  the  country  between  the  Nueces  and  the  Rio 
Grande,  which  had  been  settled  by  Spaniards  since  1694 
as  the  province  of  Coahuila,  and  had  been  peaceably  in 
Spanish  and  Mexican  possession  ever  since,  though  Texas 
had  attempted  some  formal  exercises  of  jurisdiction  over 
it.  In  this  disputed  territory  lay  the  germs  of  the 
Mexican  War. 

In  the  presidential  election  of  1844  votes  were  gained 
for  Polk  in  the  North  by  the  demand  for  the  re-occupa- 
tion of  Oregon,  and  by  the  cry  of  "Polk,  Dallas,  and  the 
tariff  of  1842"';  but  in  the  South  the  whole  question 
turned  on  Texas,  and  "Texas  or  disunion"  became  a 

1  See  Tariff. 


70  The  Slavery  Controversy 

common  toast.  Folk's  election  was  accomplished  in  part 
by  the  vote  which  the  Liberty  party  l  threw  away  on 
Birney,  which  would  have  given  New  York  and  Michigan 
to  Clay,  and  in  part  by  indubitable  fraudulent  voting  in 
Plaquemines  parish,  in  Louisiana,  which  gave  the  vote  of 
that  State  to  Polk.  Nevertheless,  his  success  was  taken 
as  a  popular  indorsement  of  Texas  annexation,  and  in 
the  next  session  of  Congress  the  doubtful  members  hur- 
ried to  join  the  popular  side. 

January  25,  1845,  a  joint  resolution  was  passed  by  the 
House,  by  a  vote  of  120  to  97,  that  "Congress  doth  con- 
sent that  the  territory  properly  included  within,  and 
rightfully  belonging  to,  the  republic  of  Texas',  may  be 
erected  into  a  new  State,  to  be  called  the  State  of 
Texas,"  the  consent  being  given  on  three  conditions,  1st, 
that  evidence  of  the  formation  of  the  new  State  should 
be  sent  to  Congress  for  final  action  on  or  before  January 
I,  1846;  2d,  that  the  public  property  of  the  republic 
should  be  transferred  to  the  United  States ;  and  3d,  and 
most  important,*  as  follows: 

"Third.  New  States  of  convenient  size,  not  exceeding  four 
in  number,  in  addition  to  the  said  State  of  Texas,  and  having 
sufficient  population,  may  hereafter,  by  the  consent  of  said 
State,  be  formed  out  of  the  territory  thereof,  which  shall  be 
entitled  to  admission  under  the  provisions  of  the  Federal  con- 
stitution ;  and  such  States  as  may  be  formed  out  of  that  por- 
tion of  said  territory  lying  south  of  thirty-six  degrees  thirty 
minutes  north  latitude,  commonly  known  as  the  Missouri 
Compromise  line,  shall  be  admitted  into  the  Union  with  ,or 
without  slavery,  as  the  people  of  each  State  asking  admission 
may  desire.  And  in  such  State  or  States  as  shall  be  formed 
out  of  said  territory  north  of  said  Missouri  Compromise  line, 
slavery  or  involuntary  servitude  (except  for  crime)  shall  be 
prohibited." 

1  See  Abolition,  II. 

1  See  Dred  Scott  Case,  Kansas-Nebraska  Bill,  Compromises,  V. 


Texas  and  Oregon  71 

To  some  of  the  Senators  this  formation  of  a  new  State 
out  of  territory  which  had  never  been  formally  annexed 
seemed  utterly  unconstitutional,  and  an  amendment,  pre- 
pared by  Senator  Walker,  of  Wisconsin,  was  added,  au- 
thorizing the  President,  if  he  should  deem  it  advisable,  to 
first  make  a  treaty  of  annexation  with  Texas.  The  whole 
was  then  passed  by  a  vote  of  27  to  25,  and  agreed  to  by 
the  House.  No  such  treaty  was  ever  made. 

The  opponents  of  annexation  have  always  claimed  that 
the  annexing  policy  was  brought  about  by  a  piece  of 
sharp  practice.  The  resolution  for  annexation  could 
have  secured  its  scant  majority  in  the  Senate  only  by 
adding  the  Walker  amendment  giving  the  President  dis- 
cretionary power  to  bring  Texas  in  under  a  treaty  instead 
of  by  joint  resolution,  and  even  this  could  secure  a  bare 
majority  only  after  Mr.  Polk,  the  President-elect,  was 
induced  to  pledge  himself  to  act  by  treaty  instead  of  by 
joint  resolution.  Tyler  forestalled  Polk  and  leaped  at 
the  chance  of  ending  his  presidency  with  the  £clat  and 
the  honor  of  annexation.  On  the  last  day  of  his  term 
he  sent  a  special  messenger  with  the  joint  resolution 
to  secure  the  assent  of  Texas  to  annexation  by  that 
quicker  and  easier  process.  Polk  refused  to  recall  this 
messenger  and  he  was  accused  of  collusion  with  Tyler 
and  the  annexationists  and  of  bad  faith  with  the  op- 
ponents of  annexation.  On  June  i8th,  the  unanimous 
consent  of  the  Texan  Congress  was  obtained  to  annexa- 
tion, and  this  was  ratified  by  a  popular  convention  on 
July  4th. 

A  joint  resolution  was  passed  in  the  House,  December 
1 6,  1845,  by  141  to  56,  and  in  the  Senate,  December  22d, 
by  31  to  13,  for  the  admission  of  Texas  as  a  State,  and 
its  annexation  was  complete  without  the  formality  of  a 
treaty. 

The  power  of  annexation  by  treaty,  which  had  been 
doubted,  but  exercised,  in  1803,  had  thus  been  carried, 


72  The  Slavery  Controversy 

in  1845,  to  annexation  even  without  treaty,  and  both  by 
the  strict  constructionist  party.1  The  annexation  of 
Texas  added  376,133  square  miles  to  the  United  States. 

New  Mexico  and  Upper  California.  —  These  two 
pieces  of  territory  had  been  conquered  during  the  Mexi- 
can war,  the  former  (including  Utah,  Nevada,  and  a 
large  part  of  Arizona,  New  Mexico,  and  Colorado)  by 
Kearney,  and  the  latter  by  the  navy  under  Commodore 
Stockton  and  a  small  land  force  under  Fremont,  and  both 
were  held  as  conquered  territory  until  the  end  of  the  war. 

From  the  opening  of  hostilities,  the  acquisition,  by 
force  or  purchase,  of  a  liberal  tract  of  Mexican  territory, 
as  "indemnity  for  the  past  and  security  for  the  future," 
had  been  a  principal  object  of  the  war,  and  at  its  close, 
by  the  treaty  known  as  the  treaty  of  Guadalupe  Hidalgo, 
signed  February  2,  1848,  by  Mr.  Nicholas  P.  Trist,  and 
three  Mexican  commissioners,  and  ratified  by  the  Senate 
March  loth,  the  territory  above  named  was  added  to  the 
United  States,  the  price  being  fixed  at  $15,000,00x3,  be- 
sides the  assumption  by  the  United  States  of  $3,250,000 
in  claims  of  American  citizens  against  Mexico. 

The  territory  thus  annexed,  including  that  part  of  New 
Mexico  east  of  the  Rio  Grande,  which  was  claimed  by 
Texas,  and  for  which  Texas  was  afterwards  paid  $10,- 
000,000  by  the  United  States,  added  to  the  area  of  the 
United  States  545,783  square  miles. 

Gadsden  Purchase. — During  the  next  five  years  dis- 
putes arose  as  to  the  present  southern  part  of  Arizona, 
the  Mesilla  Valley,  from  the  Gila  River  to  Chihuahua. 
A  Mexican  army  was  marched  into  it  by  Santa  Anna  and 
preparations  were  begun  for  a  renewal  of  war.  By  the 
Gadsden  treaty,  December  30,  1853,  so  called  from  its 
negotiator,  the  United  States,  at  the  price  of  $10,000,000, 
obtained  the  disputed  territory,  as  well  as  a  right  of 
transit  for  troops,  mails,  and  merchandise  over  the 

1  For  the  further  results  see  Wilmot  Proviso,  Compromises,  V. 


Texas  and  Oregon  73 

isthmus  of  Tehuantepec.      By  this  annexation,   45,535 
square  miles  were  added  to  the  United  States. 

II.  OREGON— NORTHWEST  BOUNDARY.  7.  Claims. — 
The  territory  bounded  north  by  latitude  54°  40',  east  by 
the  Rocky  Mountains,  south  by  latitude  42°  (the  northern 
boundary  of  California),  and  west  by  the  Pacific  Ocean, 
has  been  claimed  at  various  times,  and  to  varying  ex- 
tents, by  Russia,  Spain,  Great  Britain,  and  the  United 
States.  As  the  claims  overlapped  and  interfered  with 
one  another,  they  may  be  first  stated.1 

1.  The  claim  of  Russia  rested  mainly  on  occupation  by 
fur  traders,  and  its  southern  boundary  was  at  first  unde- 
fined.    April  5-17,  1824,  a  treaty  was  arranged  between 
the  United  States  and  Russia,  which  was  ratified  by  the 
former  January  n,  1825.     By  its  third  article  no  settle- 
ments were  to  be  made  under  the  authority  of  the  United 
States  north  of  latitude  54°  40',  nor  any  Russian  settle- 
ments south  of  that  line.    February  28,  1825,  by  a  treaty 
between  Russia  and  Great  Britain,  the  same  parallel  was 
made  a  part  of  the  boundary  between  their  respective 
settlements.      By   these   two    treaties    Russia    at    once 
secured  her  southern  boundary,  and  withdrew  from  the 
imbroglio. 

2.  The  claim  of  Spain,  in  some  respects  the  best  of  all, 
rested  in  discovery,  backed  by  occupation.      The  dis- 
covery rested  in  the  voyages  of  Cabrillo  and  Ferrelo  in 
1543,  to  latitude  43°;  of  Juan  de  Fuca  in  1592  to  parallel 
49°,  and  the  strait  which  bears  his  name ;  of  Vizcaino  in 
1603,  to  latitude  43°;  of  Perez  in  1774,  to  latitude  54°; 
of  Heceta  in  1775,  to  latitude  48°,  discovering,  but  not 
entering,  the  river  St.  Roque  (now  the  Columbia) ;  and 
of  a  few  minor  voyagers  as  far  north  as  latitude   59°. 
Occupation  had  been  begun  as  early  as  1535,  by  a  land 
expedition  under  Fernando  Cortez,  and  Jesuit  settlements 

1  For  the  northeast  boundary,  see  Maine. 


74  The  Slavery  Controversy 

were  gradually  pushed  farther  north,  though  they  never 
passed  latitude  42°.  Nevertheless,  Spain  asserted  ex- 
clusive control  of  the  coast  beyond  latitude  42°.  In  May 
and  June,  1789,  Spanish  armed  vessels  seized  several 
British  vessels  in  Nootka  Sound,  and  war  was  only  averted 
by  the  Nootka  Sound  convention,  or  treaty  of  the  Escu- 
rial,  October  28,  1790,  by  which  British  trading  buildings 
in  Nootka  Sound  were  to  be  restored,  the  right  of  trade 
was  to  be  secured  to  both  parties,  but  neither  was  to  land 
on  coasts  already  occupied  by  the  other.  In  1803,  by 
the  treaty  ceding  Louisiana,1  the  claim  of  France,  which 
was  really  the  claim  of  Spain,  to  an  indefinite  territory 
on  the  Pacific,  was  transferred  to  the  United  States;  and 
by  the  Florida  treaty  of  1819-22,"  Spain  fixed  latitude 
42°  as  the  Pacific  portion  of  the  boundary  line  between 
her  American  territory  and  the  United  States.  Spain 
thus  retired  from  the  field,  leaving  but  two  contestants 
for  the  disputed  territory,  Great  Britain  and  the  United 
States. 

3.  Great  Britain  had  little  or  no  claim  by  discovery. 
Drake  had  seen  the  coast  in  1580;  Cook  had  examined  it 
slightly  in  1778;  and  Vancouver  much  more  thoroughly 
in  1793;  but  all  these  were  rather  rediscoverers  than  dis- 
coverers.     Occupation  was  actually  begun   in   1788  by 
Meares,  an  English  lieutenant;    but  he  was   under  the 
Portuguese  flag  at  the  time,  with  letter  of  marque  against 
British  vessels  who  should  molest  him,  so  that  his  occu- 
pation could  hardly  weigh  heavily  for  Great  Britain.     In 
1793,  1806,  and  1811  enterprising  fur  traders,  in  private 
employ,  pushed  into  the  Oregon  country,  and  established 
trading  posts  there;  but  there  was  no  attempt  at  perma- 
nent settlement  south  of  latitude  49°. 

4.  The  claim  of  the  United  States  deduced  from  Spain 
is  at  least  doubtful.     The  claim   by  discovery  rests  on 
two  grounds,  the  voyage  of  Gray,  and  the  expedition  of 

1  See  Louisiana.  s  See  Florida. 


Texas  and  Oregon  75 

Lewis  and  Clarke.  In  1792  Captain  Gray,  of  Boston, 
entered  the  river  St.  Roque,  at  which  Heceta  had  only 
guessed,  and  changed  its  name  to  the  Columbia  River, 
after  the  name  of  his  vessel.  In  1805-6  Lewis  and 
Clarke,  under  orders  from  President  Jefferson,  crossed 
the  Rocky  Mountains,  struck  the  southern  headwaters 
of  the  Columbia,  floated  down  that  river  to  its  mouth, 
and  explored  very  much  of  the  Oregon  country.  On 
the  strength  of  Gray's  discovery  the  United  States 
claimed  all  of  the  country  drained  by  the  Columbia;  but 
so  extensive  a  claim  is  hardly  tenable  in  international 
law.  Lewis  and  Clarke's  expedition  was  more  important : 
it  was  made  under  government  authority,  and  it  covered 
most  of  the  territory  south  of  latitude  49°;  while  the 
British  fur  traders  were  not  in  public  employ,  and  their 
explorations  were  north  of  latitude  49°. 

On  the  whole,  if  discovery  alone  were  in  question,  lati- 
tude 49°,  as  finally  fixed,  would  seem  to  be  equitable: 
south  of  it  the  United  States  had  officially  explored  the 
territory;  and  north  of  it  Great  Britain  had  done  so, 
though  not  officially.  In  1811  John  Jacob  Astor,  of 
New  York,  established  a  trading  post  at  the  mouth  of 
the  Columbia,  and  named  it  Astoria;  but  during  the 
war  of  1812  it  was  captured  by  the  British,  and  named 
Fort  George.  In  1818  it  was  restored  to  the  United 
States  Government,  but  its  private  owner  abandoned  it. 
Attempts  in  1822  and  1827  to  organize  American  fur  com- 
panies for  operating  in  the  Oregon  country  were  unsuc- 
cessful, owing  to  the  powerful  rivalry  of  well-established 
British  companies;  but  they  led  the  way  to  a  more  legiti- 
mate occupation,  by  immigration,  in  which  Great  Britain 
could  not  compete.  This  began  in  1832,  and  after  1838 
no  autumn  passed  without  an  increasing  supply  of  per- 
manent settlers  across  the  Rocky  Mountains.  In  1845 
the  American  population  was  nearly  three  thousand,  and 
there  was  no  probability  of  any  decrease  in  the  increase 


76  The  Slavery  Controversy 

for  the  future.  Here,  after  all,  lay  the  true  ground  of 
the  American  claim — in  legitimate  and  permanent  settle- 
ments; and,  as  these  filled  the  space  covered  by  Lewis 
and  Clarke's  explorations,  the  two  together  make  a  valid 
claim  up  to  latitude  49°. 

//.  Settlement. — The  definitive  treaty  of  peace  of  Sep- 
tember 3,  1783,  after  defining  the  northeastern  boundary 
to  the  St.  Lawrence  River,  continued  the  northern 
boundary  between  the  United  States  and  British  America 
up  through  the  middle  of  the  St.  Lawrence  River  and 
the  Great  Lakes  to  Long  Lake,  on  the  northern  coast  of 
Lake  Superior;  thence  northwesterly  by  the  water  com- 
munications through  Rainy  Lake  to  the  Lake  of  the 
Woods;  and  thence  to  the  river  Mississippi,  which  was 
then  the  boundary  between  the  United  States  and  Span- 
ish America.  The  cession  of  Louisiana  to  the  United 
States  in  1803  made  necessary  a  definition  of  the  northern 
boundary  between  the  new  cession  and  British  America; 
and  this  was  settled  by  the  second  article  of  the  con- 
vention of  October  20,  1818,  which  fixed  latitude  49°  as 
the  boundary  from  its  intersection  with  the  Lake  of  the 
Woods  to  the  Stony  [Rocky]  Mountains.  West  of  the 
Rocky  Mountains  the  whole  territory  was  to  be  open,  for 
ten  years,  to  the  vessels,  citizens,  and  subjects  of  both 
powers,  without  prejudice  to  the  claims  of  either.  By 
the  convention  of  August  6,  1827  (ratified  by  the  United 
States,  April  2,  1828),  the  joint  occupation  of  the  Oregon 
country  by  Great  Britain  and  the  United  States  was  con- 
tinued indefinitely,  with  the  provision  that  either  party 
might  annul  and  abrogate  it,  on  giving  twelve  months' 
notice  to  the  other. 

In  both  these  negotiations  the  American  negotiators 
laid  formal  claim  to  the  whole  territory  drained  by  the 
Columbia,  included  generally  between  parallels  42°  and 
52°  of  latitude;  but  they  showed  a  willingness  to  compro- 
mise on  latitude  49°  to  the  Pacific. 


Texas  and  Oregon  77 

The  British  negotiators,  on  the  other  hand,  seem  to 
have  been  willing  to  accept  latitude  49°  to  its  intersection 
with  the  Columbia;  but  thence  to  the  Pacific  they  in- 
sisted on  the  Columbia  itself  as  a  boundary,  thus  adding 
to  British  America  nearly  the  whole  of  the  present  State 
of  Washington.  In  such  a  conflict  of  claims,  the  only 
possible  line  of  action  was  to  continue  the  joint  occupa- 
tion until  one  party  should  be  able  to  assert  an  exclusive 
right  to  some  part  of  it. 

As  American  immigration  increased,  the  certain  perils 
of  a  joint  occupation  increased  with  it.  The  magistrates 
of  neither  country  could  have  or  exercise  jurisdiction 
over  the  citizens  of  the  other;  and  difficulties  between 
parties  of  different  nationalities  could  therefore  have  no 
forum  for  settlement.  In  1838  propositions  to  organize 
some  system  of  justice  in  the  Oregon  country  began  to 
be  offered  in  Congress.  At  first  these  were  only  to  imi- 
tate the  British  system  of  erecting  forts  and  providing 
magistrates  for  the  trial  of  offences,  without  any  design 
to  terminate  the  joint  occupation ;  but  the  settlement  of 
the  northeastern  boundary  question  in  1842  had  an  un- 
fortunate effect  on  the  discussion  of  the  true  northwestern 
boundary. 

There  was  considerable  dissatisfaction  in  both  countries 
over  the  result  of  the  treaty  of  1842,  and  a  determination 
to  insist  on  their  respective  claims  in  Oregon.  In  the 
United  States  this  feeling  took  two  distinct  forms,  i. 
The  treaty  by  which  Russia  had  agreed  to  settle  no  farther 
south  than  latitude  54°  40'  seems  to  have  produced  a  be- 
lief that  this  line  was  the  proper  boundary.  Forgetting 
that  the  treaty  could  bind  only  the  parties  to  it,  and  that 
Great  Britain  could  appeal  to  a  precisely  similar  contem- 
porary treaty  with  Russia,  there  were  many  in  the  United 
States  who  were  willing  to  insist  on  the  Russian  boundary 
even  at  the  price  of  a  war  with  Great  Britain.  This  feeling 
was  popularly  summed  up  as  "fifty-four-forty-or-fight." 


78  The  Slavery  Controversy 

2.  The  "Monroe  Doctrine"  was  strongly  appealed  to, 
in  order  to  sustain  the  view  that  to  yield  any  part  of 
the  Pacific  coast  to  Great  Britain  would  be  to  consent  to 
the  formation  of  a  European  colony  on  this  continent, 
and  that,  too,  as  our  nearest  neighbor.  Of  this  feeling 
Douglas  was  the  ablest  exponent. 

In  this  state  of  public  feeling,  the  Democratic  National 
Convention  of  1844  declared  for  the  "reoccupation  of 
Oregon,"  on  the  ground  that  our  title  to  the  whole  of  it 
was  clear  and  unquestionable.  It  was,  to  be  sure,  coupled 
with  a  demand  for  the  "reannexation  of  Texas  "  ;  but  it 
met  a  popular  feeling  in  the  North  and  West  which  it 
was  difficult  to  resist.  Democratic  success  in  1844,  and 
the  decided  tone  of  President  Polk's  inaugural  in  1845, 
made  the  Oregon  question  prominent  from  the  beginning 
of  his  administration. 

Under  the  preceding  (Tyler's)  administration,  the  Sec- 
retary of  State,  Calhoun,  had  been  conducting  a  negotia- 
tion on  the  Oregon  question  with  the  British  Minister, 
Pakenham,  from  July,  1844,  until  January,  1845.  Cal- 
houn had  offered  to  take  latitude  49°  as  the  boundary ; 
Pakenham  had  offered,  in  return,  the  Columbia  River 
from  latitude  49°  to  the  Pacific,  and  when  this  was  de- 
clined had  proposed  an  arbitration,  which  Calhoun  re- 
fused. This  refusal,  and  the  declaration  of  the  inaugural 
that  our  title  to  "the  whole  of  Oregon"  was  indisputable^ 
and  that  our  settlers  there  must  be  protected,  raised  the 
war  feeling  high  in  Great  Britain.  This  seems  to  have 
had  an  influence  on  the  President.  In  July,  1845,  h*s 
Secretary  of  State,  Buchanan,  again  proposed  latitude 
49°  as  a  boundary,  which  was  again  refused;  but  the 
rumor  of  the  offer  evoked  such  a  storm  that  the  Secretary 
withdrew  it. 

The  meeting  of  Congress  in  December,  1845,  was  tne 
signal  for  a  renewal  of  the  question.  Resolutions  were 
introduced  in  both  Houses  that  the  "whole  of  Oregon" 


Texas  and  Oregon  79 

belonged  to  the  United  States,  and  that  there  was  no 
power  in  the  President  and  Senate  to  alienate  by  treaty 
any  part  of  the  soil  of  the  United  States. 

Senators  Allen,  of  Ohio,  and  Hannegan,  of  Indiana, 
were  the  most  persistent  champions  of  these  measures. 
On  the  contrary,  the  opposition,  Calhoun  being  its  ablest 
speaker,  held  that,  since  immigration  to  Oregon  could 
only  come  from  the  United  States,  it  was  wiser  to  main- 
tain the  joint  occupation  until  the  natural  process  of 
crowding  out  should  compel  Great  Britain  to  withdraw. 
The  former  then  began  to  press  a  resolution  directing  the 
President  to  give  Great  Britain  the  twelve  months'  notice 
to  terminate  the  joint  occupation.  The  latter  united  in 
holding,  i,  that  as  the  notice  was  part  of  a  treaty,  the 
treaty  power  alone  could  give  it;  2,  that  the  notice  was 
in  the  direct  line  of  war  with  Great  Britain,  for  which  the 
country  was  not  ready ;  and  3,  that  in  any  event  the  reso- 
lution should  only  authorize  the  President  to  give  the 
notice  when  in  his  judgment  the  proper  time  had  come; 
that  is,  when  the  United  States  should  be  ready  for  war. 
This  the  other  side  answered  by  pressing  bills  for  the  in- 
crease of  the  navy. 

To  strengthen  the  hands  of  the  anti-war  Democrats 
and  Whigs,  the  President  sent  to  Congress,  February  7, 
1846,  the  correspondence  between  the  two  governments 
since  December.  From  this  it  appeared  that  Great  Brit- 
ain was  arming;  that  the  United  States  had  asked  for 
the  reasons  of  her  preparations ;  and  that  she  had  frankly 
acknowledged  that  she  was  incidentally  preparing  for  an 
American  war. 

In  March,  after  the  House  had  passed  the  directory 
resolution  for  notice,  a  friend  of  the  President  in  the 
Senate  advised  a  compromise  on  latitude  49°  as  the  boun- 
dary. He  declined  to  calm  the  resulting  excitement  by 
acknowledging  the  President  as  his  authority.  April 
1 6th  the  Senate  passed  a  discretionary  resolution  for 


8o  The  Slavery  Controversy 

notice;  and  two  days  later  the  House  amended  it  by 
"authorizing  and  requesting"  the  President  to  give 
notice.  April  23d,  both  Houses  agreed  to  a  new  reso- 
lution, which,  while  varying  the  form  of  the  Senate 
resolution,  retained  its  essence,  that  the  President  be 
"authorized"  to  give  the  twelve  months'  notice,  and  that 
negotiations  should  continue. 

June  6,  1846,  the  British  Ambassador  offered  to  accept 
latitude  49°  as  the  boundary  to  the  channel  between 
Vancouver's  Island  and  the  mainland,  thence  down  the 
middle  of  the  channel  and  the  Strait  of  Fuca  to  the 
Pacific,  with  free  navigation,  to  both  parties,  of  the  chan- 
nel and  the  Columbia.  Even  this  did  not  wholly  relieve 
the  President,  for  he  had  no  mind  to  array  himself  against 
the  "fifty-four-forty  "  idea.  He  therefore  endeavored  to 
throw  the  responsibility  upon  the  Whig  Senate  by  re- 
questing its  advice  on  the  acceptance  of  the  convention 
— a  process  unused  since  Washington's  time.  It  must 
be  recorded  to  the  credit  of  the  Whigs  who  were  not 
ignorant  of  his  purpose,  that  they  advised  the  ratifica- 
tion of  the  convention,  June  I2th.  Ratifications  were 
exchanged  at  London,  July  17,  1846,  and  the  Oregon 
question,  in  its  main  features,  was  settled  finally. 

There  was  still,  however,  one  minor  point,  which  was 
not  settled  until  1872.  The  commissioners  appointed  to 
run  the  boundary  could  not  agree  on  the  true  water 
channel  through  the  middle  of  which  it  was  to  run. 
The  British  insisted  on  the  Rosario  Straits;  the  Ameri- 
cans on  the  Canal  de  Haro.  By  the  thirty-fourth  article 
of  the  treaty  of  Washington,  in  1871,  it  was  agreed  to 
submit  the  question  finally  to  the  Emperor  of  Germany 
as  arbitrator.  In  the  following  year  the  arbitrator  de- 
cided in  favor  of  the  Canal  de  Haro. 

References  on  Texas:  2  von  Hoist's  United  States ;  I 
Greeley's  American  Conflict ;  Wise's  Seven  Decades ;  11 
Adams's  Memoirs  ;  }zy' $  Review  of  the  Mexican  War  ;  4 


Texas  and  Oregon  81 

Calhoun's  Works ;  2  Benton's  Thirty  Years'  View ;  16 
Benton's  Debates  of  Congress  ;  I  Rhodes ' s  History  of  the 
United  States ;  Julian's  Life  of  Giddings  ;  Wilson's  Slave 
Power;  Williams's  Life  of  Houston ;  W.  H.  Smith's  Po- 
litical History  of  Slavery ;  W.  E.  Channing's  Letter  to 
Clay,  in  Works  of  Charming ;  Schouler'sfftsforyof  United 
States ;  2  Schurz's  Life  of  Clay ;  Burgess's  "Middle 
Period,"  Am.  Hist.  Rev.,  April,  1900. 

References  on  Oregon :  8  Stat.  at  Large,  80,  248,  360, 
9  ib.,  869,  and  17  ib.,  863  (for  treaties  of  September  3, 
1783,  October  20,  1818,  August  6,  1827,  June  15,  1846, 
and  May  8,  1871,  respectively);  3  von  Hoist's  United 
States,  161,  216,  273;  15,  16  Benton's  Debates  of  Con- 
gress (see  index);  Statesman  s  Manual  (Folk's  Messages); 
Greenhow's  Northwest  Coast,  1840,  and  History  of 
Oregon  and  California,  1845  (the  authorities  cited  in 
the  footnotes  form  a  bibliography  up  to  date) ;  living's 
Astoria  and  Bonneville' s  Expedition;  Reports  of  Lewis 
and  Clarke,  and  Fremont;  Rush's  Residence  at  the 
Court  of  London  (London  ed.  of  1872),  372;  I  Dix's 
Speeches  and  Addresses  (the  best  statement  of  the 
American  claims);  Edinburgh  Review,  July,  1845  (prob- 
ably the  fairest  summary);  2  N.  W.  Senior's  Essays; 
Dunn's  Oregon  Territory ;  Falconer's  Oregon  Question; 
Robertson's  Oregon:  Our  Right  and  Title ;  T.  Twiss's 
Oregon  Question  Examined ;  Wallace's  Oregon  Question 
Determined ;  2  Benton's  Thirty  Years  View,  660 ;  4  Cal- 
houn's Works,  260;  2  Webster's  Works,  322;  5  ib.,  60 ;  2 
Webster's  Private  Correspondence,  215,  230;  I  Coleman's 
Life  of  Crittenden,  236;  Cutts's  Constitutional  and  Party 
Questions,  61 ;  Stanwood's  Presidency;  E.  G.  Bourne, 
Am.  Hist.  Rev.,  January,  1901;  Senate  Documents,  3ist 
Congress,  ist  Session,  No.  29. 


CHAPTER  IV 

THE  WILMOT  PROVISO 

A  LTHOUGH  this  principle  has  been  baptized  with 
f\  the  name  of  David  Wilmot,  a  Democratic  Con- 
gressman from  Pennsylvania,  who  attempted  to  apply  it 
in  1846  to  the  territory  about  to  be  acquired  from  Mexico, 
it  is  in  reality  the  outcome  of  that  principle  of  congres- 
sional control  over  the  Territories  which  has  constantly 
been  applied  in  practice  since  the  nation  first  owned 
Territories. 

The  Ordinance  of  1787  (see  that  title)  prohibited  slavery 
in  the  Northwest  Territory;  and  in  the  territory  south- 
west of  the  Ohio  the  prohibition  of  slavery  was  not  im- 
posed, because  Congress,  in  accepting  the  cessions  of  it 
by  the  States,  had  voluntarily  bound  itself  not  to  do  so. 
In  the  organization  of  the  Territories,  while  Congress  has 
allowed  the  election  of  the  lower  house  of  the  legislature 
by  the  people,  it  has  always  retained  to  the  National 
Government  the  appointment  of  the  judges  and  of  the 
governors,  with  a  veto  on  the  territorial  legislatures,  and 
has  even  retained  a  power  to  veto,  in  the  last  resort,  the 
action  of  territorial  governors  and  legislatures  together. 
Its  power  to  prohibit  polygamy  and  slavery  in  the  Terri- 
tories has  always  rested  on  exactly  the  same  foundation. 

In  the  case  of  slavery  it  would  probably  never  have 
been  denied,  but  for  the  influence  occasioned  by  the 
growth  of  slavery.  Jefferspn's  prohibition  of  slavery  in 

82 


The  Wilmot  Proviso 

both  the  northwest  and  southwest  Territories  came  within 
a  hair's  breadth  of  success  in  1784;  and  the  more  limited 
prohibition  of  1787  had  practically  no  opposition.  In 
the  case  of  Missouri,  in  1819-20,  there  was  hardly  any 
denial  in  the  South,  while  there  was  a  unanimous  affirma- 
tion in  the  North,  of  the  power  of  Congress  to  prohibit 
anything  in  the  Territories,  even  slavery. 

The  Southern  argument  was  altogether  different  from 
any  such  denial.  It  showed  that  the  National  Govern- 
ment had  acquired  the  territory  west  of  the  Mississippi, 
when  slavery  was  permitted  therein  by  law ;  that  it  had 
taken  no  steps  whatever  to  prohibit  slavery  therein,  but 
had  allowed  it  to  extend  north  through  Missouri;  and 
that,  when  Missouri  had  thereby  become  a  slave  State 
through  the  continued  policy  of  Congress,  confirmed  by 
the  admission  of  Louisiana  as  a  slave  State  in  1812,  it 
was  not  just,  by  a  sudden  reversal  of  policy  in  the  case 
of  Missouri,  to  destroy  property  rights  which  Congress, 
at  least  by  laches,  had  allowed  to  grow  up. 

Leaving  out  of  question  the  morality  of  slavery,  the 
Southern  reasoning  was  just,  and  indeed,  mutatis  mu- 
tandis, was  exactly  the  reasoning  of  the  Free  Soilers  of 
after  days.  In  1820,'  Congress  recognized  its  justice:  it 
refrained  from  touching  slavery  in  that  part  of  the  an- 
nexation where  it  had  been  allowed  to  grow  up,  in  the 
States  of  Louisiana  and  Missouri,  and  in  the  Territory  of 
Arkansas;  but  it  took  absolute  assurance  for  the  future 
by  prohibiting  slavery  forever  in  the  rest  of  the  annexa- 
tion, that  part  lying  north  of  latitude  36°  30'. 

The  mistake  lay  in  allowing  this  to  go  forth  as  a  com- 
promise, a  bargain,  a  division  of  territory  between  the 
sections,  instead  of  a  plain  exercise  of  rightful  power  by 
Congress,  coupled  with  an  act  of  condonation  for  the  past. 
There  could  then  have  been  no  attempt  to  stamp  the  Wil- 
mot Proviso  in  1846  as  a  novelty  in  American  legislation. 

1  See  Compromises. 


The  Slavery  Controversy 
f 

I.  BEFORE  ANNEXATION. — (Prohibitions  of  slavery 
were  inserted  in  the  organization  of  the  new  Territories 
formed  from  the  Louisiana  Purchase,  Iowa  in  1838,  and 
Minnesota  in  1849,  by  the  following  provision^  "The 
laws  of  the  United  States  are  hereby  extended  over  and 
declared  to  be  in  force  in  the  said  Territory,  so  far  as  the 
same,  or  any  provision  thereof,  may  be  applicable." 
The  prohibition  of  slavery  therein,  passed  in  1820,  thus 
attached  to  them  as  organized  Territories.  It  was  very 
doubtful  whether  Oregon  was  really  a  part  of  the  Louisiana 
Purchase,1  and  for  greater  safety  an  explicit  prohibition 
of  slavery  was  inserted  in  the  first  House  bill  to  organize 
the  Territory.  In  this  form  the  House  passed  the  bill, 
February  3,  1845,  by  a  vote  of  140  to  59.  Pending  diffi- 
culties with  Great  Britain  made  the  organization  of  the 
Territory  at  that  time  a  matter  of  doubtful  prudence,  and 
it  was  not  considered  by  the  Senate  until  after  the  treaty 
of  June  15,  1846. 

All  parties  who  voted  for  the  annexation  of  Texas  did 
so  with  a  silent  recognition  of  slavery  therein,  as  estab- 
lished by  local  law.  But  the  remainder  of  the  Mexican 
republic  was  absolutely  barred  to  slavery,  at  first  by  a 
decree  of  the  dictator  Guerrero  in  1829,  and  then  by  the 
constitutions  of  the  Mexican  republic.  If,  then,  any 
portion  of  it  should  be  annexed  to  the  United  States,  it 
would  come  in  as  free  territory,  just  as  all  other  acquisi- 
tions had  been  slave  territory  when  acquired.  Early  in 
the  Mexican  war  an  arrangement  seems  to  have  been 
made  by  the  Administration  with  the  banished  Mexican 
President,  Santa  Anna,  by  which  he  was  to  be  allowed  to 
return  to  Mexico,  reorganize  his  party,  and  conclude  a 
peace  on  the  basis  of  a  payment  by  the  United  States  for 
a  cession  of  territory. 

August  8,  1846,  in  a  special  message,  the  President 
asked  for  the  appropriation  of  a  sum  of  money  for  "the 

1  See  Northwest  Boundary. 


The  Wilmot  Proviso 

adjustment  of  a  boundary  with  Mexico  such  as  neither 
republic  will  hereafter  be  inclined  to  disturb,"  that  is,  for 
the  purchase  of  Mexican  territory  outside  of  Texas. 
Such  a  bill,  appropriating  $2,000,000,  was  at  once  intro- 
duced in  the  House,  and  debate  was  limited  to  two  hours. 
Northern  and  Southern  Whigs  were  alike  opposed  to  any 
acquisition  of  territory,  for  fear  of  introducing  with  it  the 
question  of  slavery  :  and  White,  of  New  York,  and  Win- 
throp,  of  Massachusetts,  now  expressed  their  party's 
views  clearly  and  forcibly.  Most  of  the  Northern  Demo- 
crats, while  determined  on  acquisition  of  territory,  were 
equally  determined  that  it  should  remain  free.  Brincker- 
hoff,  of  Ohio,  at  once  drafted,  and  Wilmot  introduced, 
the  amendment  afterward  famous  as  the  "Wilmot  Pro- 
viso," as  follows: 

that  [as  an  express  and  fundamental  condition  to 


the  acquisition  of  any  territory  from  the  republic  of  Mexico 
by  the  United  States,  by  virtue  of  any  treaty  which  may  be 
negotiated  between  them,  and  to  the  use  by  the  executive  of 
the  moneys  herein  appropriated]  neither  slavery  nor  involun- 
tary servitude  shall  ever  exist  in  any  part  of  said  territory,  ex- 
cept for  crime,  whereof  the  party  shall  first  be  duly  convicted." 

The  words  in  brackets  were  not  essential,  except  under 
temporary  circumstances,  and  the  remainder  forms  the 
Wilmot  Proviso  proper,  as  it  is  usually  cited.  It  fol- 
lowed the  language  of  the  Ordinance  of  1787. 

Remarkably  little  opposition  was  made  to  this  first  ap- 
pearance of  the  proviso,  and  that  little  came  from  South- 
ern Democrats  who  alleged  that  the  territory  in  question 
was  already  free  ;  that  the  proviso  was  thus  needless  ;  and 
that  it  was  also  mischievous,  as  a  piece  of  supererogatory 
and  offensively  anti-Southern  legislation,  which  would 
provoke  the  election  of  extreme  Southern  representatives 
and  endanger  the  Union.  This  view  will  be  found  best 
stated  by  Benton,  as  cited  below,  and  he  himself  was  one 


The  Slavery  Controversy 

of  the  first  victims.  The  proviso  was  quietly  accepted; 
the  House  decided  it  in  order  by  a  vote  of  92  to  37,  and 
adopted  it  (83  to  64)  and  the  whole  bill  (85  to  79)  on  the 
day  of  its  introduction.  Two  days  afterward,  on  the  last 
day  of  the  session,  the  Senate  voted,  19  to  10,  to  take  up 
the  bill  for  consideration.  Lewis,  of  Alabama,  moved  to 
strike  out  the  proviso.  Davis,  of  Massachusetts,  argued 
against  the  motion,  and  persisted  in  his  argument  until 
the  time  fixed  for  adjournment  came,  and  he  was  cut  off 
in  the  full  flow  of  debate.  The  proviso  thus  fell  with  the 
bill. 

It  was  claimed  at  the  time  that  it  would  have  been 
passed  by  the  votes  of  all  the  free-State  Senators,  and 
those  from  Delaware  and  Maryland ;  but  Wilson  makes  a 
very  convincing  showing  that  it  would  have  been  voted 
down.  Nevertheless,  the  denunciations  of  Davis's  action 
in  Democratic  newspapers  and  in  the  Union,  the  official 
newspaper  at  Washington,  were  far  more  severe  than  in 
those  of  their  opponents.  Cass,  in  conversation,  cen- 
sured Davis  severely.  Polk,  in  his  message  of  the  follow- 
ing December,  without  any  condemnation  of  the  proviso, 
expressed  his  regret  that  the  bill  had  not  passed,  and  his 
confidence  that  a  majority  of  both  Houses  was  still  in 
favor  of  it.  The  legislatures  of  every  Northern  State 
east  of  Indiana,  excepting  Maine,  but  including  Delaware, 
formally  approved  the  proviso,  Democrats  and  Whigs 
uniting  in  the  vote.  Everything  seemed  to  point  to  its 
passage,  as  a  Democratic  measure,  at  the  following 
session. 

Before  the  following  session  the  Southern  members  had 
been  naturally  forced  into  an  attitude  of  stronger  oppo- 
sition to  the  proviso.  Every  Southern  aspirant  to  a  seat 
in  Congress  was  certain  to  represent  the  sitting  member's 
active  or  passive. support  of  the  proviso  as  an  act  of  trea- 
son to  the  South ;  and  thus  all  the  Southern  Democrats, 
who  desired  an  acquisition  of  territory,  were  arrayed 


The  Wilmot  Proviso 

against  the  proviso.  Southern  Whigs,  who  were  against 
the  acquisition,  could  safely  vote  against  the  proviso  with 
its  bill,  and  could  carry  enough  Northern  Whigs  with 
them  on  that  issue  to  preserve  the  national  integrity  of 
their  party.  How  were  Northern  Democrats  to  keep 
their  party  intact? 

This  pressing  question  was  answered  by  the  evolution 
of  the  new  dogma  of  ' '  popular  sovereignty  ' '  (see  that 
title)  in  the  Territories,  by  virtue  of  which  the  status  of 
slavery  in  any  Territory  was  to  be  remitted  to  the  de- 
cision of  the  people  of  the  Territory.  Urged  at  first  as 
a  prudent  way  of  settling  the  difficulty,  it  almost  imme- 
diately became  the  touchstone  of  democracy,  and  Wilmot 
and  Democrats  who  supported  him  were  driven  out  of 
the  party. 

January  4,  1847,  in  the  House,  Preston  King,  of  New 
York,  asked  leave  to  offer  a  bill  like  that  of  the  previous 
session,  changing  $2,000,000  to  $3,000,000,  but  adding 
the  proviso.  Before  it  could  be  considered,  bills  of  like 
nature,  but  without  the  proviso,  had  been  reported  in 
both  Houses.  In  the  Senate  the  Southern  Whigs  un- 
successfully tried  to  add  a  prohibition  of  any  purchase  of 
territory ;  and  the  bill,  without  the  proviso,  passed  March 
ist.  In  the  House  the  proviso  was  moved  by  Wilmot  as 
an  amendment,  February  8th,  renewed  by  Hamlin,  Feb- 
ruary 1 5th,  and  adopted  by  a  vote  of  115  to  106,  Douglas 
unsuccessfully  trying  to  restrict  it  to  territory  north  of 
latitude  36°  30'.  March  3d,  in  the  House,  the  proviso 
was  added  to  the  Senate  bill  in  committee  of  the  whole 
by  a  vote  of  90  to  80,  but  rejected  on  the  report  of  the 
committee  (97  to  102) ;  and  the  bill,  without  the  proviso, 
was  finally  passed  (115  to  81). 

In  the  meantime,  a  bill  to  organize  Oregon  Territory, 
with  a  provision  that  the  inhabitants  should  enjoy  all  the 
privileges,  and  be  bound  by  all  the  prohibitions  and  re- 
strictions, of  the  Ordinance  of  1787  (which  prohibited 


88  The  Slavery  Controversy 

slavery),  was  passed  by  the  House,  January  16,  1847. 
But  Oregon  was  now  to  be  linked  in,  for  a  time,  with  the 
territory  to  be  annexed ;  and  the  Senate,  after  twice  com- 
mitting the  bill,  laid  it  on  the  table,  March  3d. 

II.  AFTER  ANNEXATION  AND  BEFORE  COMPROMISE. — 
Before  any  further  measures  could  be  attempted  at  the 
next  session,  peace  had  been  concluded,  February  2, 
1848,  and  the  great  Territories  of  California  and  New 
Mexico  had  been  transferred  to  the  United  States.  The 
fact  of  possession  greatly  changed  political  conditions. 
Southern  Democrats  simply  continued  to  oppose  the 
proviso ;  Northern  Democrats  now  opposed  it  by  force  of 
the  doctrine  of  popular  sovereignty  ;  and  Southern  Whigs, 
who  had  opposed  it  together  with  the  $3,000,000  bill,  on 
account  of  the  acquisition  of  territory,  found  little  diffi- 
culty in  continuing  the  opposition  after  annexation.  In 
short,  the  proviso  had  now  no  friends  in  Congress,  ex- 
cepting a  part  of  the  Northern  Whigs  and  the  few  remain- 
ing Wilmot  Democrats.  Only  the  imminent  presidential 
election  of  1848,  and  the  unknown  possibilities  of  a 
Northern  free-soil  uprising,  prevented  the  organization 
of  the  Territories,  without  the  proviso,  in  the  spring  of 
1848;  and  the  lost  opportunity  was  not  easily  regained. 

May  29,  1848,  the  President  called  the  attention  of 
Congress  to  the  pressing  necessity  of  organizing  Oregon 
Territory ;  and  the  necessity  was  emphasized  by  the  fact 
that  the  popular  provisional  government  in  Oregon  had 
begun  to  make  laws  forbidding  slavery.  The  necessary 
bill,  which  Douglas  had  reported,  January  loth,  was  at 
once  brought  up ;  Hale  offered  as  an  amendment  a  sec- 
tion imposing  the  prohibitions,  as  well  as  the  privileges, 
of  the  Ordinance  of  1787;  and  debate  continued  until 
July  1 2th.  A  select  committee  of  eight  was  then  chosen, 
and  it  reported,  July  i8th,  a  bill  in  thirty-seven  sections, 
commonly  known  as  the  "Clayton  compromise,"  from 
the  chairman  of  the  committee,  organizing  the  Territories 


The  Wilmot  Proviso  89 

of  Oregon,  California,  and  New  Mexico  together.  No 
power  was  given  to  the  territorial  legislatures  to  legislate 
on  slavery,  and  questions  of  its  legality  or  illegality  in 
any  particular  Territory  were  to  be  decided  by  the  terri- 
torial courts,  with  a  right  to  appeal  to  the  United  States 
Supreme  Court.  This  Corwin  opposed  as  enacting  "not 
a  law  but  a  lawsuit." 

In  this  form  the  bill  passed  the  Senate,  July  26th,  but 
the  House  laid  it  on  the  table  by  a  vote  of  112  to  97,  and 
it  was  never  revived.  The  majority  was  made  up  of  74 
Northern  Whigs,  30  Northern  Democrats,  and  8  Southern 
Whigs.  August  2d,  the  House  passed  an  Oregon  bill, 
with  the  section  relating  to  the  Ordinance  of  1787. 
August  loth,  the  Senate  passed  it  with  an  amendment 
declaring  the  Missouri  Compromise  line  to  extend  to  the 
Pacific  and  to  be  binding  in  all  future  organizations  of 
Territories;  and  on  the  following  day  the  House  non- 
concurred.  August  1 2th,  the  Senate  receded,  passed  the 
bill  as  it  originally  came  from  the  House,  and  Oregon 
was  a  free  Territory.  The  secret  of  the  Senate's  action 
was  in  the  Buffalo  convention  three  days  before,  and  the 
nomination  of  candidates  pledged  against  extension  of 
slavery.1 

The  Southern  leaders  were  doubly  embarrassed  at  the 
meeting  of  Congress  in  December,  1848.  The  discovery 
of  gold  in  California,  January  19,  1848,  was  increasing 
the  population  so  rapidly  that  a  State  government  would 
soon  be  even  more  necessary  than  a  territorial  govern- 
ment ;  and  the  mass  of  Northern  Democrats  in  Congress 
were  so  thoroughly  provoked  by  Taylor's  election  through 
Southern  electoral  votes  as  to  be  ready  even  for  the  pro- 
viso. Nothing  could  have  postponed  the  proviso  but  the 
shortness  of  the  session,  and  the  still  controlling  influence 
of  the  South  in  the  Senate.  Congress  had  hardly  organ- 
ized, when  the  House,  December  I3th,  by  a  vote  of  108 
1  See  Free-Soil  Party. 


The  Slavery  Controversy 

to  80,  instructed  the  Committee  on  Territories  to  bring 
in  territorial  bills  for  California  and  New  Mexico,  "ex- 
cluding slavery  therefrom."  The  committee,  one  week 
later,  reported  the  California  bill,  but  it  was  not  reached 
until  February  26,  1849.  The  next  day  it  was  passed  by 
a  vote  of  126  to  87,  almost  exactly  sectional.  The  New 
Mexico  bill  was  reported  January  3d,  but  was  not  reached. 
In  the  Senate  the  California  bill  was  referred,  but  never 
considered,  and  the  committee  was  discharged,  March 
3d.  In  place  of  it,  an  unsuccessful  attempt  was  made  to 
tack  a  Senate  bill  to  the  appropriation  bill.  At  the  ad- 
journment the  Territories  were  still  left  unorganized. 

No  one,  as  yet,  denied  the  right  of  the  people  of  a 
Territory,  when  forming  a  State  constitution,  to  prohibit 
slavery;  and  the  new  Administration  (Taylor's)  at  once 
undertook  to  solve  the  problem  by  procuring  the  forma- 
tion of  State  governments  in  both  California  and  New 
Mexico.  In  both  of  these  the  Wilmot  Proviso  was  a 
part  of  the  State  constitution.  This  forced  the  further 
proceedings  into  a  new  line,  which  is  detailed  elsewhere.1 

In  reviewing  the  whole  current  of  events,  at  the  close 
of  September,  1850,  it  will  appear  that  the  object  of  the 
proviso,  the  prohibition  of  slavery,  had  been  successfully 
attained  in  all  the  territory  outside  of  the  Louisiana  Pur- 
chase, except  the  modern  State  of  Nevada,  and  the 
Territories  of  Utah,  New  Mexico,  and  Arizona  (then  in- 
cluded in  New  Mexico);  and  that,  as  to  the  excepted 
portions,  the  Mexican  laws  abolishing  slavery  therein  had 
never  been  interfered  with  by  American  laws.  But  the 
struggle  over  the  Wilmot  Proviso,  which  was  essentially 
only  a  declaration  of  the  existing  law  of  the  Territories, 
was  a  very  sufficient  warning  that  some  influence  was  at 
work  which  would  resist  any  such  declaration  for  the 
future.  This  was  the  doctrine  of  Calhoun,  that  the  Con- 
stitution's  guarantee  of  security  to  property  covered  the 

1  See  Compromises,  V. 


The  Wilmot  Proviso 

Territories  also ;  and  that  Congress  was  bound  to  enforce 
it  in  the  case  of  slave  property,  as  well  as  other  property, 
he  objection  now  seems  insuperable  that  the  slaves  were 
always  referred  to  as  "persons"  in  the  Federal  Constitu- 
tion, and  as  "property  "  only  in  State  constitutions  and 
laws,  which  could  have  nothing  to  do  with  the  Terri- 
tories. But  at  the  time  Calhoun's  doctrine  fell  in  too 
closely  with  Southern  feeling  to  be  resisted.  It  was 
adopted,  openly  by  some,  tacitly  by  others,  and  the  com- 
parative strength  of  the  former  class  steadily  increased. 
Calhoun's  resolutions  of  February  19,  1847,  protesting 
against  discrimination  in  the  Territories  against  any 
State,  were  the  first,  though  vague,  expression  of  the 
doctrine,  and  their  effect  was  seen  in  the  unanimous 
resolutions  of  the  Virginia  Legislature,  March  8th,  follow- 
ing: i,  that  such  a  discrimination  was  in  violation  of  the 
compromises  of  the  Constitution;  2,  that  it  was  to  be 
"resisted  at  every  hazard  " ;  and  3,  that,  in  the  event  of 
the  passage  of  the  Wilmot  Proviso  or  any  law  abolishing 
slavery  or  the  slave  trade  in  the  District  of  Columbia, 
the  governor  should  immediately  convene  the  Legislature 
"to  consider  of  the  mode  and  measure  of  redress."  As 
the  proviso  discussion  went  on,  the  Southern  tone  grew 
still  warmer;  and  at  the  time  of  the  final  compromise 
most  of  the  Southern  States  had  statutes  or  resolutions 
in  existence  directing  the  governor  to  call  a  popular  con- 
vention in  the  event  of  the  passage  of  the  proviso.1 

In  this  period  (1846-50)  the  discussions  over  the  organi- 
zation of  Oregon  are  very  important.  The  student  should 
read  the  speeches  of  Rhett,  Calhoun,  and  Webster. 
Since  the  South  had  obtained  Texas  it  was  not  thought 
that  any  contention  would  arise  as  to  the  free  status  of 
Oregon,  and  resistance  to  the  free  organization  of  that 
Territory  arose  only  as  a  means  of  enforcing  concessions 

1  See  Secession,  II. 


92  The  Slavery  Controversy 

elsewhere,  or  because  of  the  principle  involved  which  the 
South  was  not  willing  to  surrender.  When  the  Wilmot 
Proviso  was  proposed  for  Oregon,  Burt,  of  South  Caro- 
lina, proposed  an  amendatory  clause,  "inasmuch  as  said 
Territory  is  north  of  36°  30'."  The  purpose  of  this  was 
to  secure  a  public  legal  declaration  of  the  right  to  intro- 
duce slavery  south  of  this  line.  Northern  votes  rejected 
the  Burt  amendment,  which  was  equivalent  to  notice 
that  resistance  would  be  offered  to  the  extension  of 
slavery  into  any  national  territory.  Webster  sets  forth 
the  principle  of  the  Wilmot  Proviso,  August  12,  1848: 

' '  Gentlemen  say  we  deprive  them  of  participation  in  Terri- 
tories acquired  by  common  service  and  common  exertions. 
How  deprive?  Of  what  do  we  deprive  them?  Of  the  privi- 
lege of  carrying  their  slaves  to  the  new  Territory.  They  say 
we  deprive  them  of  the  privilege  of  going  into  this  Territory 
with  their  'property.'  What  do  they  mean  by  'property'? 
We  certainly  do  not  deprive  them  of  the  privilege  of  going  into 
these  new  Territories  with  all  that  in  the  general  estimate  of 
human  society,  in  the  general  and  common  and  universal  esti- 
mate of  mankind,  is  esteemed  property.  They  have  in  their 
States  peculiar  laws  which  create  property  in  persons,  while 
everybody  agrees  that  it  is  against  natural  law.  They  mean, 
then,  that  they  cannot  go  into  the  Territories  of  the  United 
States  carrying  their  own  peculiar  local  law  which  creates 
property  in  persons.  This  is  all  the  ground  of  complaint  they 
have.  The  demand  of  the  South  goes  upon  the  idea  that  there 
is  an  inequality  unless  persons  under  this  local  law,  holding 
property  by  authority  of  that  law,  can  go  into  new  territory 
and  there  establish  that  local  law  to  the  exclusion  of  the  gen- 
eral law.  All  the  Southern  people  may  go  into  the  new  terri- 
tory. The  only  restraint  is  they  may  not  carry  slaves  there 
and  continue  the  relation.  They  say  this  shuts  them  out  alto- 
gether. There  can  be  nothing  more  inaccurate  in  point  of 
fact  than  this  statement.  Who  settled  Illinois?  Who  settled 
Indiana?  Immigrants  from  Kentucky,  Virginia,  Tennessee, 


The  Wilmot  Proviso  93 

and  the  Carolinas,  equally  and  with  equal  privileges  with  all 
other  sections." 

Calhoun  in  the  Senate,  and  Rhett,  of  South  Carolina, 
in  the  House,  set  forth  ably  the  Southern  position  on 
the  rights  of  slavery  in  the  Territories.  They  held  it  to 
be  within  the  power  and  duty  of  the  General  Government 
to  protect  slavery  there.  The  Territories  belonged  to 
the  States  united.  The  States  were  the  joint  owners,  co- 
sovereigns  in  the  Territories;  the  General  Government 
was  only  the  agent  of  the  States  in  the  Territories.  Its 
power  "to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory  and  other  property 
of  the  United  States"  did  not  involve  the  right  to  decide 
what  should  be  property  there.  "The  ingress  of  a  citizen 
is  the  ingress  of  his  sovereign,  that  is,  his  State,  who  is 
bound  to  protect  him  in  his  settlement."  Rhett  dis- 
claimed the  doctrine  that  each  State  should  set  up  a 
government  in  the  Territory  over  its  citizens  immigrating 
into  them ;  he  meant  only  that  the  citizens  of  each  State 
should  have  equal  right  to  enter  the  Territories  and  settle 
with  their  property, — with  whatever  was  recognized  as 
property  by  their  respective  States.  The  General  Gov- 
ernment must  execute  in  the  Territories  the  laws  of  each 
State  defining  and  protecting  property ;  it  must  recognize 
and  protect  as  property  anything  which  was  so  recognized 
and  protected  by  any  State  in  the  Union.  This  meant 
the  legal  protection  of  slavery  in  every  Territory  of  the 
Union.  Professor  Burgess  says,  "this  was  a  new  doc- 
trine in  1847  and  marks  the  progress  toward  confeder- 
atism  and  dissolution."  J 

As  to  what  law  touching  slavery  prevailed  in  the 
Mexican  cessions  from  1848  to  1850,  Calhoun  contended 
that,  immediately  the  treaty  was  made,  the  Constitu- 
tion superseded  the  laws  of  Mexico  in  the  transferred 

1  Middle  Period,  342-3. 


The  Slavery  Controversy 

territory  and  legalized  and  protected  slavery  there. 
Benton  called  this  Calhoun's  "dogma  of  the  transmigra- 
tory  function  of  the  Constitution,  and  the  instantaneous 
transportation  of  itself  in  its  slavery  attributes  into  all 
acquired  territories."  On  the  proposal  to  recognize  the 
continuance  of  the  status  of  military  possession  and  the 
operation  of  the  Mexican  laws  in  the  acquired  territory 
(which  prohibited  slavery)  Senator  Berrien  of  Georgia  con- 
tended that  only  the  private  law  of  the  ceding  country, 
the  law  regulating  the  relations  between  individuals,  re- 
mains in  force  in  the  territory  ceded,  until  changed  by  the 
positive  legislation  of  the  country  receiving  the  cession ; 
that  the  public  law  of  the  receiving  country  is  extended 
at  once,  by  virtue  of  the  occupation,  over  the  cession ; 
that  slavery  was  a  part  of  the  public  law  of  the  United 
States,  since  both  the  system  of  taxation  and  that  of 
representation  rested  upon  it.  Therefore,  without  action 
by  Congress,  according  to  Berrien,  the  President  should 
continue  to  execute  the  private  law  of  Mexico  and  the 
public  law  of  the  United  States  in  the  new  cessions.  The 
pro-slavery  forces  in  Congress  did  not  wish  the  positive 
recognition  by  Congress  of  the  Mexican  laws  for  the 
Territories,  but  rather  that  the  applicable  parts  of  the 
Constitution  should  be  recognized  as  extending  there, 
which,  according  to  the  Southern  view,  would  protect 
slavery.  Neither  of  these  things  was  done,  and  the 
Thirtieth  Congress  expired  without  doing  anything  for 
the  governmental  organization  of  California  and  New 
Mexico. 

/  This  discussion  brought  out  and  left  pending  five 
I  distinct  proposals  for  the  settlement  of  the  problem  of 
\slavery  in  the  Territories. 

ffl  The  Southern  Calhoun-Rhett  doctrine:  National 
protection  of  slavery  in  the  Territories.  The  Constitu- 
tion is  a  pro-slavery  instrument  and  recognizes  and  pro- 
tects property  in  slaves.  Neither  Congress,  nor  the 


The  Wilmot  Proviso  95 


inhabitants  of  a  Territory,  nor   a  territorial    legislature 
can  exclude  slavery  from  a  Territory. 

2.  The  doctrine  of  the  Wilmot  Proviso,  directly  op- 
posed to  the  Southern  principle, — that  slavery  should  be 
prohibited  in  the  Territories  by  national  authority. 

3.  The  principle  of  popular  sovereignty, — leaving  the 
question  of  slavery  in  the  Territories  to  the  settlers  there. 

4.  The  extension  of  the  Missiouri  Compromise  line  to 
the  Pacific. 

5.  The  Clayton  compromise,  proposing  to  leave  the 
status  of  slavery  in  the  Territories  to  be  settled  by  judicial 
process,  in  the  territorial  courts,  with  right  of  appeal  to 
the  Supreme  Court  of  the  United  States. 

None  of  these  proposals  for  settling  the  territorial 
question  in  relation  to  slavery  was  agreed  upon,  and  thus 
a  situation  was  left  open  which  led  to  the  famous  com- 
promise measures  of  1850. — ED. 

III.  AFTER  THE  COMPROMISE. — The  general  ratifica- 
tion of  the  compromise  of  i850L  seemed  at  first  to  have 
put  an  end  to  the  desire  for  the  proviso.  When  was  it 
to  be  applied?  California  was  a  free  State,  and  the 
Territories  had  been  completely  organized,  those  acquired 
under  the  Louisiana  Purchase  having  the  proviso  under 
the  Missouri  Compromise,  and  those  acquired  under  the 
Mexican  purchase  merely  ignoring  it. 

Not  content  to  let  well  enough  alone,  the  Northern 
Democratic  leaders,  in  1854,  attempted  to  apply  the 
"popular  sovereignty"  principle  to  the  new  Territories 
of  Kansas  and  Nebraska,  formed  from  the  Louisiana 
Purchase,1  and  thus  to  wipe  out  the  proviso  when  it  was 
already  established  by  law.  The  attempt  naturally  re- 
vived the  proviso  on  a  far  stronger  ground.  It  was  now 
an  evidently  conservative  effort  to  reapply  to  the  Louisi- 
ana Purchase  the  prohibition  which  had  been  its  organic 

1  See  Kansas-Nebraska  Bill. 


x~\ 

96  The  Slavery  Controversy 

law  from  1820  until  1854;  and  it  thus  secured  a  breadth 
of  support  greater  than  it  could  have  obtained  in  1849- 
50,  and  became  the  basis  of  a  great  Northern  party.1 
But  of  course  the  new  party  could  not  be  content  to  limit 
the  assertion  of  the  proviso  to  the  Louisiana  Purchase: 
law  for  one  Territory  was  law  for  all,  for  Utah  and  New 
Mexico  as  well  as  for  Kansas  and  Nebraska;  and  thus 
the  work  of  1850  was  to  be  done  over  again,  with  no 
chance  now  for  compromise. 

In  1857  the  Supreme  Court  decided  that  the  proviso 
had  always  beeri "uncfonstitutionai  in  the  case  of  any 

noun"  i  ni  i  •   i    TII  ina^__  — ^— ^•^—••^^^     ^ ••i*****"1"1*1'*^'"**'**^"'"''*****1**1***^*^***—*"™^*""'''^*"1'^ 

Territory a ;  butjkius  had  little  effect  on  the  supporters 
of  the  proviso.  They  still  asserted  the  right  of  Congress 
to  impose  a  prohibition  of  slavery  upon  the  Territories, 
disregarding  the  obiter  dicta  of  the  Supreme  Court,  and 
leaving  the  constitutional  question  to  be  decided  by  the 
Court  when  the  case  should  come  directly  before  it. 
Against  this  permanent  programme  a  bald  negative  was 
but  a  poor  reliance :  the  South  was  compelled  to  choose 
between  admitting  the  validity  of  a  prospective  prohibi- 
tion, or  taking  Calhoun's  extreme  ground  of  the  duty  of 
Congress  to  protect  slavery  in  the  Territories. 

It  chose  the  latter,8  its  ultimatum  being  expressed  in 
Jefferson  Davis's  Senate  resolutions  of  May  24-25,  1860. 
The  most  important  of  these,  in  this  'connection,  were 
the  fourth  and  fifth,  as  follows : 

' '  4,  that  neither  Congress  nor  a  territorial  legislature, 
whether  by  direct  legislation  or  legislation  of  an  indirect  and 
unfriendly  character,  possesses  power  to  annul  or  impair  the 
constitutional  right  of  any  citizen  of  the  United  States  to  take 
his  slave  property  into  the  common  Territories,  and  there  hold 
and  enjoy  the  same  while  the  territorial  condition  remains;  5, 
that,  if  experience  should  at  any  time  prove  that  the  judicial 

1  See  Republican  Party,  I.  'See  Dred  Scott  Case. 

3  See  Democratic  Party,  V. 


The  Wilmot  Proviso  97 

and  executive  authority  do  not  possess  means  to  insure  ade- 
quate protection  to  constitutional  rights  in  a  Territory,  and  if 
the  territorial  government  should  fail  or  refuse  to  provide  the 
necessary  remedies  for  that  purpose,  it  will  be  the  duty  of 
Congress  to  supply  such  deficiency." 

At  least  a  part  of  these  resolutions  was  explained  by  a 
territorial  law  of  New  Mexico,  in  1859,  establishing 
slavery.  It  was  disapproved  by  the  House  of  Repre- 
sentatives, but  the  Senate  did  not  act  on  the  veto  bill,  so 
that  the  territorial  slave  law  remained  in  force.  On  the 
contrary,  the  eighth  resolution  of  the  Republican  platform 
in  May,  1860,  declared 

' '  that  the  normal  condition  of  all  the  territory  of  the  United 
States  is  that  of  freedom ;  that,  as  our  republican  fathers,  when 
they  had  abolished  slavery  in  all  our  national  territory,  ordained 
that  no  person  should  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law,  it  becomes  our  duty,  by  legislation, 
whenever  such  legislation  is  necessary,  to  maintain  this  pro- 
vision of  the  Constitution  against  all  attempts  to  violate  it ;  and 
we  deny  the  authority  of  Congress,  of  a  territorial  legislature, 
or  of  any  individuals,  to  give  legal  existence  to  slavery  in  any 
Territory  of  the  United  States." 

The  issue  was  thus  fairly  made  up  on  both  sides :  all  or 
nothing.  The  Republican  programme  was  indorsed  by 
Lincoln's  election,  and  secession  and  war  followed.1 

IV.  FINAL  ESTABLISHMENT  OF  THE  PROVISO.— The 
withdrawal  of  Southern  Senators  and  Representatives 
left  the  Republicans  in  a  majority  in  both  Houses  of 
Congress  before  the  end  of  the  session  of  1 860-61 ;  but 
they  made  no  attempt  to  enforce  the  eighth  section  of 
the  Chicago  platform.  The  propositions  of  Crittenden,* 
and  of  the  peace  congress,3  both  of  which  aimed  to  forbid 

1  See  Secession,  III.;  Rebellion.  *  See  Compromises,  VI. 

3  See  Conference,  Peace. 
VOL.  H.— 7. 


98  The  Slavery  Controversy 

the  future  application  of  the  Wilmot  Proviso  to  territory- 
south  of  latitude  36°  30',  were  rejected;  but,  on  the 
other  hand,  the  Territories  of  Colorado,  Dakota,  and 
Nevada  were  organized  without  the  Wilmot  Proviso,  in 
entire  silence  as  to  slavery,  and  therefore  with  all  the 
benefits  to  the  South  of  the  Dred  Scott  decision.  Slavery 
in  the  Territories  remained  undisturbed  until  1862,  im- 
meHlafeljTafter  its  abolition  in  the  District  of  Columbia, 
April  1 6th.1 

In  the  House,  March  24th,  a  bill  was  introduced  "to 
render  freedom  national,  and  slavery  sectional,"  and  was 
referred  to  the  Committee  on  Territories.  It  was  re- 
ported, May  ist,  recommitted,  and  again  reported,  May 
8th.  It  was  now  a  bill  to  prohibit  slavery  in  the  Terri- 
tories, in  Federal  forts,  dockyards,  etc.,  in  vessels  on  the 
high  seas,  in  national  highways,  and  in  all  places  where 
the  National  Government  had  exclusive  jurisdiction.  It 
was  debated  until  May  i2th,  when  it  had  been  modified 
into  a  simple  prohibition  of  slavery  in  the  Territories, 
and  was  then  passed  by  a  vote  of  85  to  50.  In  the 
Senate,  June  9th,  its  language  was  slightly  changed  to 
the  following: 

/  *'  that,  from  and  after  the  passage  of  this  act,  there  shall  be 
/  neither  slavery  nor  involuntary  servitude  in  any  of  the  Terri- 
/  tories  of  the  United  States  now  existing,  or  which  may  at  any 
time  hereafter  be  formed  or  acquired  by  the  United  States, 
\  otherwise  than  in  punishment  of  crime,  whereof  the  party 
\  shall  have  been  duly  convicted  "; 

and  it  was  then  passed  (28  to  10).  June  i/th,  the  House 
concurred  (72  to  38);  and  the  bill  became  law,  June  I9th. 
Itjvas  never  brought  before  the  Supreme  Court,  in  order 
that  its  constitutionality  might  be  examined  in  the  light 
of  the  yet  unreversed  Dred  Scott  decision ;  bjut  all  doubts 

1  See  Abolition,  III. 


The  Wilmot  Proviso  99 

on  that  score  were  removed  by  the  national  abolition  of 
slavery  in  1865,  through  the  ratification  of  the  Thirteenth 
Amendment.1 

See  3  Von  Hoist's  United  States,  286;  i  Greeley's 
American  Conflict,  189;  2  Wilson's  Rise  and  Fall  of  the 
Slave  Power,  18;  Harris's  Political  Conflict  in  America, 
114;  2  A.  H.  Stephens's  War  Between  the  States,  165; 
Buchanans  Administration,  18;  I  Dix's  Speeches,  179 
(Three  Million  Bill);  Gardiner's  The  Great  Issue,  94;  16 
Benton's  Debates  of  Congress,  223-254  (Oregon),  399 
(summary  of  Mexican  laws  abolishing  slavery);  Cleve- 
land's A.  H.  Stephens,  343  (and  law  authorities  there 
cited  in  favor  of  the  continuance  of  Mexican  laws  after 
conquest) ;  3  Statemans  Manual,  1613  (Message  of  August 
8,  1846),  1710  (Message  of  May  29,  1848);  15  Benton's 
Debates  of  Congress,  645  (introduction  of  the  proviso); 
16  ibid.,  index  under  Slavery ;  4  Calhoun's  Works,  339 
(resolutions  of  February  19,  1847);  r  A.  H.  Stephens's 
War  Between  the  States,  409  (Senate  resolutions  of  May 
24-25,  1860);  12  Stat.  at  Large,  432  (act  of  June  19, 
1862);  Wilson's  Anti-Slavery  Measures  in  Congress,  92. 
The  different  shades  of  opinion  as  to  the  proviso  may 
best  be  studied  as  follows :  moderate  Democratic  (South), 

2  Benton's    Thirty    Years'    View,   695   (North),    i    Dix's 
Speeches,  281 ;  extreme  Southern  Democratic,  4  Calhoun's 
Works,    535   (Speech  of   February  24,   1849);    Southern 
Whig,  Cleveland's  A.  H.  Stephens,  332  (Speech  of  Feb- 
ruary 12,  1847);  Northern  Whig,  5  Webster's  Works,  253 
(Speech   of   March   i,    1847);    free-soil,    Horace  Mann's 
Letters  and  Speeches,  10  (Speech  of  June  30,  1848);  abo- 
litionist,   Jay's  Review   of  the  Mexican    War,    183,   and 
Warden's  Life  of  Chase,  314;    administration,  1849-50, 

3  Statesman  s   Manual,    1847  (Message  of   January  21, 
1850);     Hart's    Life    of    Chase;     Bancroft's    Life    of 

1  See  Constitution,  III. 


ioo  The  Slavery  Controversy 

Seward ;  Schouler's  Hist,  of  U.  S.;  Von  Hoist's,  United 
States ;  Burgess's  Middle  Period;  Julian's  Life  of  Gid- 
dings ;  McLaughlin's  Cass ;  Stan  wood's  Presidency; 
Schurz's  Clay ;  Wise's  Seven  Decades.  The  Democratic 
Review  carefully  avoids  the  subject  until  September, 
1847  (P-  IO3)>  an<*  t*16  Whig  Review  until  August,  1848 
(p.  193),  and  then  both  pronounce  against  the  proviso, 
the  former  as  an  abolition  measure,  the  latter  as  a 
democratic  measure. 


CHAPTER  V 

COMPROMISES  IN  AMERICAN    HISTORY 

COMPROMISES  OF  THE  CONSTITUTION. —  No  census 
had  been  taken  in  America  when  the  convention  of  1787 
met,  but  its  debates  were  based  on  the  following  estimates 
of  population,  which  the  census  of  1790  showed  to  be  fair 
approximations:  i,  Virginia,  420,000;  2,  Massachusetts, 
360,000;  3,  Pennsylvania,  360,000;  4,  New  York,  238,000; 
5,  Maryland,  218,000;  6,  Connecticut,  202,000;  7,  North 
Carolina,  200,000;  8,  South  Carolina,  150,000;  9,  New 
Jersey,  138,000;  10,  New  Hampshire,  102,000;  n, 
Georgia,  90,000;  12,  Rhode  Island,  58,000;  13,  Dela- 
ware, 37,000.  In  the  five  Southern  States  the  entire 
population  was  slightly  larger,  only  three  fifths  of  the 
slaves  being  included  in  the  above  list.  Of  the  thirteen 
States  New  Hampshire  was  not  represented  in  conven- 
tion until  July  23,  1787,  and  Rhode  Island  not  at  all. 
Of  the  remaining  eleven  States,  a  "large  State"  majority 
and  a  "small  State"  minority  were  formed  almost  from 
the  convention's  first  meeting,  the  large  States  being 
Virginia,  Massachusetts,  Pennsylvania,  North  Carolina, 
South  Carolina,  and  Georgia,  and  the  small  States,  New 
York,  Maryland,  Connecticut,  New  Jersey,  and  Dela- 
ware. However  greatly  the  votes  varied  on  minor  points, 
on  the  great  and  essential  question  of  a  national  or  a 
federative  form  for  the  new  government,  the  vote  was 
usually  six  to  five  as  above  given. 

Had  the  two  parts  been  strictly  ' '  large' '  against ' '  small' ' 

101 


102  The  Slavery  Controversy 

States,  according  to  the  population  above  given,  of  course 
the  vote  would  have  stood  three  to  eight;  but  North 
Carolina,  S'p'ith  Carolta^,.  and  Georgia,  either  from  am- 
bitious hopes  of  the  future  growth  of  their  vast  western 
territdi')^  or  frdm  a  desite  to 'gratify  the  larger  States  and 
draw  them  into  a  union  which  should  afford  effective 
national  protection  against  the  Southern  Indians,  habit- 
ually voted  with  the  larger  States,  and  made  them  a  ma- 
jority, since  each  State  was  entitled  to  one  vote  in  the 
convention.  Between  the  two  parts  of  the  convention 
the  main  question  at  issue  was,  whether  the  new  govern- 
ment should  be  one  in  which  each  State's  influence  should 
be  proportioned  to  its  population,  or  one  in  which  each 
State,  however  small,  should  have  an  influence  equal  to 
that  of  any  other  State,  as  under  the  Confederacy.  The 
large  States  naturally  preferred  the  former,  or  "national  " 
system,  and  the  small  States  the  latter,  or  "federative" 
system. 

May  29th,  Edmund  Randolph,  of  Virginia,  offered  the 
"Virginia  plan,"  '  which  formulated  the  demands  of  the 
large  State  majority.  It  consisted  of  fifteen  resolutions, 
whose  main  features  were,  that  Congress  should  consist 
of  two  branches,  the  representation  in  both  based  on 
population,  that  the  Representatives  should  be  chosen  by 
the  people,  the  Senate  by  the  Representatives,  and  the 
President  by  the  Senate  and  Representatives  together. 
The  Senate  would  have  had  twenty-eight  members,  as 
follows:  Virginia,  5;  Pennsylvania  and  Massachusetts,  4 
each;  South  Carolina,  North  Carolina,  Maryland,  New 
York,  and  Connecticut,  2  each,  and  the  other  States,  I 
each.  The  three  large  States  would  thus  have  had  nearly 
one  half  (26  out  of  65)  of  the  House  of  Representatives 
and  nearly  one  half  of  the  Senate,  and,  if  united,  could 
have  controlled  the  appointment  of  the  President  and  the 
policy  of  the  Union. 

1  See  Convention  of  1787. 


^-^k 

Compromises  in  American  History  (103 , .-' 

.__ — - — 

June  1 3th,  the  committee  of  the  whole  reported  the 
"Virginia  plan  "  to  the  convention.  June  i$th,  Patter- 
son, of  New  Jersey,  offered  the  "Jersey  plan,"  the  ulti- 
matum of  the  smaller  States.  It  consisted  of  eleven 
resolutions,  mainly  intended  to  retain  and  amend  the 
Articles  of  Confederation,  to  retain  the  Congress  of  a 
single  house  and  the  equal  vote  of  each  State  in  Congress, 
to  give  Congress  the  powers  of  raising  a  revenue,  of  con- 
trolling commerce,  of  coercing  any  State  which  should 
refuse  to  pay  its  quota  or  obey  the  laws,  and  of  electing 
an  executive.  June  iQth,  the  committee  of  the  whole 
reported  adversely  to  the  "Jersey  plan,"  and  again  in 
favor  of  the  "Virginia  plan." 

Two  plans  had  thus  been  proposed,  whose  terms  in 
almost  every  point  were  entirely  incompatible.  Before 
the  rejection  of  the  Jersey  plan,  Dickinson,  of  Delaware, 
had  proposed  to  consolidate  the  two  plans,  if  possible; 
and,  June  2ist,  Johnson,  of  Connecticut,  had  touched 
the  vital  point  by  proposing  to  give  the  States  an  equal 
representation  in  the  Senate  and  a  proportionate  repre- 
sentation in  the  House.  This  proposal  of  a  compromise 
he  repeated  and  emphasized,  June  2Qth ;  and  on  the  same 
day,  Ellsworth,  of  Connecticut,  formally  moved  that  such 
provision  be  made.  July  2d,  the  motion  was  put,  and 
lost  by  five  small  States  to  five  large  States,  and  one 
(Georgia)  divided. 

The  convention  had  now  "got  to  a  point  where  it  could 
not  move  one  way  or  the  other,"  and  the  whole  business 
was  referred  to  a  select   committee  of  one  from  each 
State.     This  committee,  July  5th,  reported  Ellsworthls. 
compromise,  with  two  additional  features:   trie  House, 
wITere  thelarger  States  were  expected  to  control,  was 
to  originate  money  bills,  and  three  fifths  of  the  slaves  / 
were  to   be   included   in   the  population   as  ascertained  i 
for  representation.     The  first  proposal  was  intended  to  / 
placate  the    large  States  in  general,  and  the  second  to 


104  The  Slavery  Controversy 

secure  the  votes  of  North  Carolina,  South  Carolina,  and 
Georgia. 

At  first  the  compromise  hardly  found  a  favoring  voice 
in  the  convention.  The  committee  was  declared  to  have 
exceeded  its  powers,  and  so  moderate  a  delegate  as  Madi- 
son "only  restrained  himself  from  animadverting  on  the 
report,  from  the  respect  he  bore  to  the  members  of  the 
committee."  Nevertheless,  as  step  by  step  its  items 
were  brought  up  for  debate  and  decision,  the  whole  was 
adopted  and  became  an  integral  part  of  the  Constitution, 
with  the  addition  of  the  power  given  to  the  Senate  to 
propose  amendments  to  money  bills.  The  Senate,  there- 
fore, whose  conception  has  received  warmer  admiration 
than  that  of  any  other  feature  in  the  Constitution,  owes 
its  present  form  entirely  to  an  unwilling  compromise  of 
the  conflicting  demands  of  the  large  and  the  small 
States. 

One  of  the  incurable  evils  of  the  Confederacy  was 
that  the  States  which  had  formed  it,  after  withholding 
from  Congress  any  power  to  control  commerce,  had  pro- 
vided that  their  articles  of  association  should  only  be 
amended  by  a  unanimous  vote.  The  commerce  of  the 
country  was  therefore  the  commerce  of  thirteen  separate 
States,  each  of  which  could  levy  any  duties  it  saw  fit  upon 
exports  or  imports,  provided  it  did  not  interfere  with  ex- 
isting treaties,  or  touch  the  property  of  the  United  States 
or  of  any  other  State. 

The  State  of  New  Jersey,  before  ratifying  the  Articles 
of  Confederation,  had  warmly  objected  to  this  feature,  as 
one  which  might  involve  "many  difficulties  and  embar- 
rassments," and  most  of  the  delegates  from  the  com- 
mercial States  had  entered  the  convention  with  an 
intention  to  give  the  new  Federal  Government  this 
essential  and  absolute  power  of  controlling  commerce. 
Against  this  intention  the  delegates  from  other  States 
were  not  disposed  to  array  themselves,  except  upon  one 


Compromises  in  American  History    105 

point.  In  several  of  the  States  a  single  article  made  up 
the  mass  of  the  exportation,  as  was  the  case  in  South 
Carolina  with  rice,  in  North  Carolina  with  ship  stores, 
and  in  Virginia  and  Maryland  with  tobacco.  Should  the 
new  Federal  Government  be  given  the  power  to  lay  ex- 
port duties  on  these  a  hostile  majority  in  Congress  might 
easily  cripple  or  annihilate  the  whole  wealth  of  a  State 
at  one  blow.  Before  the  question  came  to  be  considered, 
C.  C.  Pinckney,  of  South  Carolina,  had  twice  given  notice 
that  his  State  would  not  enter  the  new  Union  unless  the 
power  to  tax  exports  was  withheld. 

The  Virginia  plan,  as  originally  offered,  made  no  direct 
reference  to  commerce,  but  only  proposed  that  Congress 
should  be  empowered  "to  legislate  in  all  cases  to  which 
the  separate  States  are  incompetent,  or  in  which  the  har- 
mony of  the  United  States  may  be  interrupted  by  the 
exercise  of  individual  legislation."  Chas.  Pinckney 's 
plan,  which  was  introduced  also  May  29th,  and  whose 
"Powers  of  Congress"  are  very  closely  followed  in  the 
Constitution,  as  finally  adopted,  distinctly  proposed  to 
give  Congress  the  power  "to  regulate  commerce  with  all 
nations,  and  among  the  several  States."  But  neither 
these  plans,  nor  that  of  Hamilton,  offered  June  i8th, 
contained  any  restriction  on  the  power  of  Congress  to  tax 
exports :  this  first  appears  in  the  draft  of  the  Constitution 
as  reported  August  6th,  in  the  words,  "No  tax  or  duty 
shall  be  laid  by  the  legislature  on  articles  exported  from 
any  State."  With  the  omission  of  the  words  "by  the 
legislature"  this  was  adopted,  August  2ist,  by  a  vote  of 
seven  States  (Massachusetts,  Connecticut,  Maryland, 
Virginia,  North  Carolina,  South  Carolina,  Georgia)  to 
four  (New  Hampshire,  New  Jersey,  Pennsylvania,  Dela- 
ware). New  York's  delegates,  with  the  exception  of 
Hamilton,  had  already  left  the  convention  because  of  the 
success  of  the  first  compromise.  By  this,  the  second, 
compromise,  Congress  was  given  complete  control  over 


1 06  The  Slavery  Controversy 

national  or  inter-State  commerce,  with  the  exception  of  a 
restriction  upon  its  power  to  tax  exports. 

In  consideration  of  this  grant  of  power  to  Congress, 
and  as  a  make-weight  to  the  Southern  agricultural  States, 
it  was  provided  that  the  foreign  slave  trade  should  not 
be  interfered  with  for  twenty  years.  Two  days  following 
the  grant  to  Congress  of  power  to  regulate  commerce,  a 
stormy  debate  arose  on  the  question  of  the  slave  trade, 
ending  in  an  emphatic  refusal  by  Georgia,  South  Carolina, 
and  North  Carolina  to  enter  the  new  Union  unless  its 
Congress  should  be  forbidden  to  prohibit  this  traffic,  or 
to  tax  it  more  highly  than  the  trade  in  other  imports. 
Here  again  the  convention  was  brought  to  a  standstill, 
and  again  the  whole  question  was  referred  to  a  select 
committee,  which  reported  the  second  part  of  this  great 
(compromise  of  the  Constitution!  It  consisted  in  for- 
bidding Congress  to  prohibit  the  importation  of  slaves,  < 
when  allowed  by  State  laws,  before  1808,  but  permitting 
the  imposition  of  a  tax  of  $10  per  head  on  such  importa- 
tions. The  slave  trade  was  thus  brought  at  once  under 
the  revenue  power  of  Congress,  and,  within  twenty  years 
thereafter,  under  its  commercial  power  also. 

As  a  make-weight  for  the  Northern  States,  a  provision 
in  the  draft  of  August  6th,  that  "No  navigation  act  shall 
be  passed  without  the  assent  of  two  thirds  of  the  mem- 
bers present  in  either  House,"  was  stricken  out,  thus  giv- 
ing to  a  congressional  majority  complete  control  over 
commerce;  and,  as  a  make-weight  for  the  Southern 
States,  it  seems  (from  C.  C.  Pinckney's  language  to  the 
South  Carolina  convention)  to  have  been  a  general  under- 
standing, though  not  a  part  of  the  compromise  commit- 
tee's report,  that  provision  would  be  made  for  a  fugitive 
slave  law.  That  part  of  the  report  relating  to  the  slave 
trade  was  adopted  by  a  vote  of  seven  States  to  four, 
Virginia,  Delaware,  Pennsylvania,  and  New  Jersey  voting 
in  the  negative.  The  rest  of  the  report,  and  the  pro- 


Compromises  in  American  History    107 

vision  for  a  fugitive  slave  law   a  few  days  after,  were 
adopted  without  any  opposition.1 

The  third  compromise  in  the  convention,  the  sec- 
ond in  which  slavery  was  involved,  is  known  as  the 
'.Ubjee-fifths  compromise/'  This  was  the  most  important 
compromise  of  the  convention  touching  slavery  and  the 
one  which  afterwards  created  much  controversy  and  dis- 
satisfaction in  the  Northern  and  Eastern  States.  It  was 
the  result  of  the  controversy  in  the  convention — a  con- 
tinuatiorToTlihe :  controversy  at  the  formation  and  during 
the  history  of  the  Confederation  —  in  relation  to  the 
method  of  apportioning  taxes  and  representatives  among 
the  States.  Having  decided  that  representation  should 
be  allotted  to  the  States  according  to  some  equitable 
proportion,  the  question  then  arose  whether  this  should 
be  according  to  wealth  or  according  to  population. 
Having  decided  that  the  allotment  should  be  according 
to  population,  the  question  arose  whether  any  or  all  of 
the  blacks  should  be  counted.  In  settling  this  the  con- 
vention fell  back  to  a  precedent  of  the  Confederation, — 
an  amendment  proposed  by  Congress  to  the  Articles  of 
Confederation,  April  18,  1783,  known  as  the  Revenue 
Amendment.  When  the  Articles  of  Confederation  were 
adopted,  from  lack  of  information  to  justify  a  better  plan, 
it  was  agreed  that  requisitions  for  expenses  (taxes)  should 
be  assessed  to  the  various  States  in  proportion  to  the 

1  The  fugitive  slave  clause  of  the  Constitution  was  not  a  part  of  any  com- 
promise. It  was  inserted  without  much  discussion  or  serious  opposition,  at 
a  late  stage  of  the  conventions  proceedings.  The  usual  statement  in  the 
political  literature  preceding  the  Civil  War  that  this  clause  was  essential  to 
the  adoption  of  the  Constitution  and  was  a  part  of  the  mutual  agreement 
necessary  to  the  union  of  the  States,  although  accepted  and  repeated  by 
many  recent  writers,  may  be  rejected  as  not  well  founded.  The  inquiry 
whether  the  fugitive  slave  clause  was  essential  to  the  adoption  of  the  Con- 
stitution is  a  good  subject  for  historical  criticism.  See  Sumner's  speech  on 
the  Fugitive  Slave  Law,  Aug  26,  1852. — ED. 


io8  The  Slavery  Controversy 

value  of  their  lands.  This  was  never  satisfactory,  and 
early  and  frequent  attempts  were  made  to  change  this 
basis  of  requisitions.  On  April  18,  1783,  Congress  finally 
recommended  to  the  States  a  revenue  scheme  by  which 
it  was  provided  that 

' '  all  charges  of  war  and  all  other  expenses  that  have  been  or 
shall  be  incurred  for  the  common  defence  or  general  welfare 
shall  be  defrayed  out  of  a  common  treasury  which  shall  be 
supplied  by  the  several  States  in  proportion  to  the  whole  num- 
ber of  white  and  other  free  citizens  and  inhabitants  of  every 
age,  sex,  and  condition,  including  those  bound  to  servitude 
for  a  term  of  years  a.nA\three  fifths  of  all  other  persons^;  except 
Indians  not  paying  taxes  in  each  State." 

This  was  agreed  to  in  the  Congress  of  the  Confederation 
and  ratified  by  all  the  States,  save  one,  when  submitted 
to  them.  It  was  then  a  question  of  allotting  taxes.  It 
was  a  maxim  of  the  Revolution  that  taxation  and  repre- 
sentation should  go  together,  and  therefore  when  in  the 
convention  of  1787  the  members  were  attempting  to 
settle  the  basis  of  representation,  the  precedent  of  1783 
was  deferred  to.  Wilson 

"  observed  that  less  umbrage  would  perhaps  be  taken  against 
an  admission  of  the  slaves  into  the  rule  of  representation  if  it 
should  be  so  expressed  as  to  make  them  only  indirectly  an  in- 
gredient in  the  rule,  by  saying  that  they  should  enter  into  the 
rule  of  taxation;  and  as  representation  was  to  be  according  to 
taxation,  the  end  would  be  equally  attained.1 " 

When  it  was  a  question  of  taxation  the  North  wished 
that  all  of  the  blacks  should  be  counted,  while  the  South 
would  exclude  them  all.  When  it  was  a  question  of  rep- 
resentation, the  tables  were  turned, — the  South  wished  to 
count  all  the  blacks,  the  North,  none.  The  three-fifths 

1  Madison's  Journal,  July  I2th. 


Compromises  in  American  History 

compromise  seemed  the  best  and  most  feasible  adjust- 
ment and  it  was  agreed  in  the  Constitution,  in  almost 
the  identical  language  of  the  Revenue  Amendment  of 
1783,  that 

' '  representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  according  to  their  respective  numbers,  which 
shall  be  determined  by  adding  to  the  whole  number  of  free 
persons,  including  those  bound  to  service  for  a  number  of 
years  and  excluding  Indians  not  taxed,  three-fifths  of  all  other 
persons."  J 

"^••••i 

This  concession  in  representation,  which  allowed  po-  i 
litical  power  to  the  South  for  a  species  of  its  property, 
was  made  to  the  then  existing  slave  States  as  a  means  of , 
securing  the  Union.  Upon  the  extension  of  slavery  and 
the  admission  of  new  slave  States,  this  compromise  be- 
came the  basis  of  opposition  on  the  part  of  Northern 
States.  This  opposition  was  largely  political  in  motive, 
as  is  seen  by  the  proposal  of  the  Hartford  Convention 
in  1814  to  amend  the  Constitution  by  rescinding  this 
compromise.  At  various  other  times  Northern  statesmen 
expressed  their  dissatisfaction  with  this  adjustment,  and 
this  concession  of  political  power  for  slave  property  be- 
came one  of  the  principal  factors  in  arousing  opposition  to 
slavery  extension. — ED." 

No  part  of  the  Constitution  has  been  more  warmly 
condemned  than  the  two  "  compromises  of  a  moral 
question." 

Those  who  so  regard  them  forget  that  to  the  members 
of  the  convention  slavery  was  not  a  moral  question  at  all ; 
that  in  but  two  Northern  States,  Massachusetts  and  New 
Hampshire,  unless  we  include  the  quasi  independent  re- 
public of  Vermont,1  had  public  opinion  advanced  so  far 

1  Const.,  Art.  I.,  Sec.  2. 
1  See  Hartford  Convention,  Missouri  Compromise,     3  See  Abolition,  I. 


The  Slavery  Controversy 

as  to  abolish  slavery  entirely ;  and  that  the  erection  of 
two  or  more  separate  nations  on  this  continent,  with 
their  certain  attendants  of  standing  armies  and  inter- 
national wars,  was  an  evil  which  it  was  the  convention's 
imperative  duty  to  avoid.  If  the  whole  future  history 
of  the  country,  even  through  and  including  the  War  of 
the  Rebellion,  had  been  laid  open  to  the  view  of  the  con- 
vention, its  present  and  pressing  duty  would  still  have 
been  to  make  the  compromises  as  cheaply  as  possible,  to 
make  South  Carolina,  North  Carolina,  and  Georgia  per- 
manent members  of  a  union,  and  then  to  leave  the  ques- 
tion of  slavery  to  the  decision  of  events. 

It  seems  beyond  question  that,  without  the  two  com- 
promises just  given,  the  formation  of  a  single  national 
government  for  the  territory  between  the  Canadas  and 
Mexico,  the  Atlantic  and  the  Pacific,  would  have  been 
an  impossibility ;  that  two  or  more,  probably  three,  con- 
federacies would  at  once  have  been  evolved;  and  that 
the  present  republic  would  never  have  existed  even  in 
imagination. 

MISSOURI  COMPROMISE. —  The  question  of  slavery 
was  at  first  of  only  incidental  interest  in  the  political 
history  of  the  country.  The  convention  of  1787,  whose 
work  and  plans  were  mainly  confined  to  the  fringe  of 
States  along  the  Atlantic  coast,  had  really  joined  two 
nations,  a  slaveholding  nation  and  one  which  only  tol- 
erated slavery,  into  one;  but  the  union  was  physical, 
rather  than  chemical,  and  the  two  sections  retained  dis- 
tinct interests,  feelings,  and  peculiarities.  As  both 
spread  beyond  the  Alleghanies  to  the  west,  the  broad 
river  Ohio  lay  in  waiting  to  be  the  natural  boundary 
between  the  States  in  which  slavery  should  be  legal  and_ 
those  in  which  it  should  be  illegal.  When  the  tide  of 
emigration  began  to  pour  across  the  Mississippi  and  fill 
the  Louisiana  Purchase,  the  dividing  line  was  lost  and 
conflict  became  inevitable. 


Compromises  in  American  History    m 

The  Territory  of  Missouri,  formerly  the  district  of 
Louisiana,  was  organized  by  various  acts  of  Congress, 
1812-19.  Slavery  had  been  legal  by  French  and  Spanish 
law  before  the  annexation,  had  been  continued  by  the 
laws  of  the  Territories  of  Louisiana  and  Missouri,  and 
had  not  been  prohibited  by  any  of  the  organizing  acts  of 
Congress.  The  Territory  was  therefore  in  the  straight 
road  to  become  a  slave  State,  as  Louisiana  had  already 
become.  March  16,  1818,  a  petition  from  Missouri  for 
permission  to  form  a  State  constitution  was  offered  in 
the  House,  and  April  3d  a  committee  reported  an  enab- 
ling act,  which  slept  until  the  following  session. 

February  13,  1819,  the  House  went  into  committee  of 
the  whole  upon  the  enabling  act,  when  Tallmadge,  of 
New  York,  offered  the  following  amendment  to  it : 

"  And  provided,  also,  That  the  further  introduction  of  slavery 
or  involuntary  servitude  be  prohibited,  except  for  the  punish- 
ment of  crimes  whereof  the  party  shall  be  duly  convicted;  and 
that  all  children  of  slaves,  born  within  the  said  State  after  the 
admission  thereof  into  the  Union,  shall  be  free,  but  may  be 
held  to  service  until  the  age  of  twenty-five  years." 

The  Tallmadge  proviso  was  added  to  the  bill  by  an 
almost  exactly  sectional  vote,  the  Northern  members 
voting  for  it  and  the  Southern  members  against  it.  The 
bill  then  passed  the  House.  In  the  Senate  it  was  amended 
by  striking  out  the  proviso,  but  the  House  refused  to  con- 
cur in  the  amendment,  and  in  the  resulting  disagreement 
the  bill  was  lost.  At  the  close  of  this  Congress,  March 
3,  1819,  Missouri  was  therefore  still  a  Territory. 

The  Tallmadge  proviso,  in  the  eyes  of  most  of  the 
Northern  politicians  who  supported  it,  was  merely  an  at- 
tempt to  maintain  the  balance  of  power  between  the  two 
sections.  Kentucky  had  been  offset  by  Vermont,  Ten- 
nessee by  Ohio,  Louisiana  by  Indiana,  and  Mississippi 


ii2  The  Slavery  Controversy 

by  Illinois.  The  Territory  of  Alabama  had  applied  for 
authorization  to  form  a  State  government,  which,  in- 
deed, was  granted  at  this  session;  and  the  Tallmadge 
proviso  was  a  demand  that  Missouri,  as  a  free  State, 
should  now  offset  Alabama. 

Accordingly,  before  the  meeting  of  the  next  Congress, 
the  legislatures  of  Delaware  and  all  the  Northern  States 
(except  those  of  New  England,  whose  unpopularity  as 
Federalists  would  have  made  their  open  support  of  doubt- 
ful value,  and  Illinois,  whose  early  settlers  were  largely 
Southern)  had  warmly  approved  the  Tallmadge  proviso, 
and  stamped  it  as  emphatically  a  Northern  measure.  In 
most  of  the  legislatures  the  vote  was  unanimous,  former 
party  lines  being  entirely  dropped.  But,  inextricably 
complicated  with  this  sectional  question,  there  were  very 
many  other  fundamental  questions,  so  that  a  full  discus- 
sion of  the  Missouri  case  would  almost  involve  a  treatise 
on  American  constitutional  law. 

1.  Even  granting  that  Congress  had  the  power  to  gov- 
ern the  Territory  of  Missouri  absolutely,  what  power  was 
there  in  Congress  to  forever  prohibit  the  future  State  of 
Missouri  from  permitting  slavery  within  its  own  limits  if 
by  its  own  laws  it  should  see  fit  to  do  so?     While  other 
States  enjoyed  the  privilege  of  permitting  or  abolishing 
slavery  at  their  discretion,  was  Missouri,  while  nominally 
entering  the  Union  on  equal  terms  with  the  other  States, 
to  be  debarred  the  right  of  choice?     On  the  other  hand, 
if  Congress  had  the  power  to  legislate  for  the  Territory, 
what  power  could  prevent  Congress  from  controlling  and 
laying  conditions  upon  the  organization  of  the  Territory 
into  a  State?     What  right  had  Missouri  to  object  to  the 
absolute  prohibition  of  slavery  to  which  Ohio,  Indiana, 
and   Illinois  had  submitted  without  a  thought  of  com- 
plaint or  objection?1 

2.  The  treaty  by  which  Louisiana,  including  Missouri, 

1  See  Ordinance  of  1787. 


Compromises  in  American  History    113 

had  been  acquired  stipulated  that  the  ceded  territory 
should  be  at  once  incorporated  into  the  Union  and  that 
its  inhabitants  should  be  given  all  the  rights  of  citizens 
of  the  United  States  as  soon  as  possible,  and  in  the 
meantime  be  protected  in  all  their  rights  of  "property." 
From  this  clause  it  was  argued  that  any  attempt  to  im- 
pose any  such  limitation  upon  the  admission  of  Missouri 
was  a  breach  of  good  faith  and  of  treaty  obligations. 
To  this  it  was  answered  that  the  contracting  powers  to 
the  treaty  must  have  been  aware  that  the  treaty  power 
could  not  in  any  way  control  the  admission  of  new  States, 
which  must  be  by  concurrent  action  of  both  branches  of 
Congress  and  the  President. 

3.  A  broader  ground  was  taken  by  some  Southern 
members.  They  held  that  the  compromise  which  gave 
the  slave  States  representation  for  three  fifths  of  the 
slave  population  '  had  recognized  slavery  as  a  funda- 
mental feature  of  their  society  ;  that  the  control  of  slavery 
was  therefore  one  of  the  powers  reserved  to  the  States; 
and  that  Congress  could  not  constitutionally  assume  that 
power  in  the  case  of  either  a  new  or  an  old  State. 

On  the  other  hand,  if  this  were  really  a  compromise  by 
which  certain  States  were  to  be  brought  into  the  Union, 
why  should  Missouri  now  claim  as  a  right  that  which  had 
been  originally  granted  only  to  a  different  and  distinctly 
marked  territory?  Was  it  not  enough  that  the  Southern 
States  which  were  included  in  the  bargain  had  received 
their  stipulated  fictitious  representation  for  slave  popu- 
lation, but  must  the  same  advantage  be  given  to  an 
indefinite  number  of  new  States  in  the  future?  The 
above  comprises,  very  briefly,  the  main  arguments  for 
and  against  the  admission  of  Missouri  as  a  slave  State. 

A  deeper  feeling  was  at  work  among  the  people  of  the 
North,  and  is  apparent  in  the  speeches  of  some  of  the 
Northern  members,  though  not  often  referred  to  openly. 

1  See  pp.  107,  108. 


ii4  The  Slavery  Controversy 

Slavery,  as  an  institution,  seemed  moribund  everywhere 
in  1789,  and  could  be  safely  left,  it  was  imagined,  to  the 
process  of  gradual  abolition  in  the  several  States.1  In 
the  following  thirty  years  it  had  really  died  in  all  the 
Northern  States,  though  it  was  not  yet  quite  buried  in 
some  of  them :  in  the  South  it  had  grown  stronger,  in- 
stead of  weaker.  Its  hands  had  reached  across  the  Mis- 
sissippi into  territory  to  which  it  had  no  title  by  the 
organic  law  on  any  interpretation.  It  had  seized  Louisi- 
ana, had  organized  Arkansas  as  a  slave  Territory,  and 
was  now  grasping  after  a  new  State,  with  the  prospect 
of  obtaining  others  in  the  near  future,  since  the  newly 
organized  Territory  of  Arkansas  comprised  the  rest  of 
the  Louisiana  Purchase. 

Here  was  the  place  to  make  the  final  stand,  to  demon- 
strate that,  even  though  a  slaveholding  population  might 
settle  a  Territory,  its  admission  as  a  State  was  within  the 
control  of  Congress,  and  it  must  enter  as  a  free  State  or 
not  at  all.  Only  one  answer  to  this  was  attempted. 
Clay  appealed  to  the  Northern  members,  as  friends  of 
the  negroes,  to  allow  them  also  the  benefits  of  migration 
to  the  fat  and  fertile  West,  and  not  to  coop  them  up  in 
the  starved  lands  of  the  older  States;  it  seems  not  to 
have  occurred  to  him  that  these  Territories,  if  left  free, 
were  the  nearest  and  best  location  for  the  colonization 
society." 

A  new  Congress  (the  sixteenth)  met  December  6,  1819. 
Alabama  was  at  once  admitted  as  a  State,  December  I4th, 
and  the  number  of  free  and  slave  States  was  thus  equal- 
ized. Missouri,  through  her  territorial  legislature,  again 
demanded  admission  as  a  State.  Maine,  whose  Demo- 
cratic majority  wished  to  separate  from  Federalist  Massa- 
chusetts, had  already  formed  a  State  constitution  and 
now  applied  for  admission  also.  The  Maine  bill  passed 
the  House,  January  3,  1820.  In  the  Senate,  after  a 

1  See  Abolition,  I.  *  See  Slavery  ;  Abolition,  I. 


Compromises  in  American  History    115 

month's  debate,  January  i6th  to  February  i6th,  the 
Maine  bill  was  also  passed,  but  with  a  "rider,"  consisting 
of  the  Missouri  bill  without  restriction  of  slavery. 

This  attempt  to  compel  the  House  to  accept  the  Mis- 
souri slave  State  bill,  or  lose  both,  was  passed  by  a  vote 
of  23  (including  3  from  the  North)  to  21.  February  i/th, 
Thomas,  of  Illinois  (pro-Southern),  offered  as  an  amend- 
ment to  the  bill  the  compromise  afterward  adopted,  which 
had  been  suggested  in  February,  1819,  by  McLane,  of 
Delaware,  and  which  consisted,  in  effect,  of  a  division  of 
the  Louisiana  Purchase  between  the  free  States  and  the 
slave  States;  and  the  Senate  adopted  the  Thomas  amend- 
ment by  a  vote  of  34  to  10.  Although  the  affirmative 
vote  in  this  instance  contained  the  votes  of  most  of  the 
Northern  Senators,  this  was  not  the  first  symptom  of 
weakening  in  the  Northern  vote;  the  organization  of 
Arkansas  as  a  slave  Territory  had  already  shown  that 
the  slavery  restrictionists  had  not  learned  the  rule  of 
obsta  principiis,  without  which  they  could  make  no  suc- 
cessful constitutional  fight.1  The  Southern  vote  was 
better  disciplined  and  had  never  wavered. 

The  Senate  passed  the  bill,  with  the  Thomas  amend- 
ment, by  a  vote  of  24  to  20. 

February  i8th,  the  House  disagreed  to  the  Senate  bill 
as  amended,  the  Thomas  amendment  having  only  18 
votes  to  1 59.  Both  Houses,  by  strong  votes,  adhered  to 
their  position,  and  the  Senate  asked  and  was  granted  a 
conference  committee,  which  reported  (i)  that  the  Senate 
should  give  up  its  union  of  the  Maine  and  Missouri  bills; 
(2)  that  the  House  should  give  up  the  Tallmadge  proviso ; 
and  (3)  that  both  Houses  should  unite  in  admitting  Mis- 
souri, with  the  Thomas  amendment,  as  follows : 

"And  be  it  further  enacted,  That  in  all  that  territory  ceded 
by  France  to  the  United  States,  under  the  name  of  Louisiana, 

1  See  Democratic  Party,  III.,  V. 


The  Slavery  Controversy 

which  lies  north  of  36  degrees  30  minutes  north  latitude,  ex-  \ 
cepting  only  such  part  thereof  as  is  included  within  the  limits 
of  the  State  contemplated  by  this  act,  slavery  and  involuntary 
servitude,  otherwise  than  in  the  punishment  of  crime,  whereof 
the  party  shall  have  been  duly  convicted,  shall  be  and  is  hereby 
forever  prohibited." 


' 


A  proviso  for  securing  the  return  of  fugitive  slaves  from 
the  Territory  in  general  was  added. 

The  whole  compromise  was  then  passed  by  the  House, 
the  second  part  of  it  by  a  vote  of  90  (76  from  the  South, 
14  from  the  North)  to  87,  and  the  third  part  by  134  to 
42,  35  of  the  nays  being  ultra-Southern  members,  who 
refused  to  approve  any  interference  by  Congress  with 
slavery  in  the  Territories. 

The  approval  of  the  President  was  still  necessary  to 
make  the  bills  law,  and  Monroe  demanded  the  opinions 
of  his  Cabinet  on  the  questions  (i)  whether  the  prohibition 
of  slavery  was  constitutional ;  and  (2)  whether  the  word 
forever  was  a  territorial  "forever,"  or  applicable  also  to 
States  formed  from  the  Territory  in  future.  The  Cabinet 
was  unanimously  in  the  affirmative  on  the  first  question, 
but  divided  on  the  second ;  but  by  an  adroit  suggestion 
of  Calhoun  the  two  questions  were  joined  into  one — Was 
the  Thomas  amendment  constitutional?  To  this  every 
member  promptly  responded  in  the  affirmative,  and  the 
bill  was  signed  March  6,  1820. 

The  Missouri  Compromise  of  1820,  of  which  Thomas, 
of  Illinois,  was  the  father,  and  Henry  Clay,  of  Kentucky, 
the  active,  zealous,  and  successful  sponsor,  was  thus  com- 
pleted in  all  its  parts.  At  first  sight  it  seems  unfair,  if 
any  arrangement,  with  which  both  parties  to  a  contro- 
versy are  content,  can  be  called  unfair.  In  a  Territory 
acquired  by  national  action  without  the  consent  of  its 
inhabitants,  and  therefore  under  national  control,  it  is 
impossible  to  make  out  a  case  for  the  establishment  of 


Compromises  in  American  History 

slavery,  any  more  than  of  a  territorial  church,  without 
the  express  action  of  Congress ;  but  the  South,  by  per- 
sistently claiming  this  right  as  to  the  whole  of  the  Loui- 
siana Purchase,  had  successfully  established  it  as  to  a 
large,  and  the  only  present  useful  part  of  it. 

There  is,  however,  another  view  of  the  matter  to  which 
attention  must  be  directed.  For  nearly  twenty  years) 
Congress  had  utterly  neglected  to  assert  or  enforce  its! 
power  over  slavery  in  the  Territories.  It  had  shut  itsj 
eyes  to  the  existence  of  slavery  in  the  Louisiana  Purchase ; 
it  had  admitted  Louisiana  as  a  slave  State;  it  had  allowed 
the  territorial  legislatures  to  legislate  in  favor  of  slavery ; 
so  late  as  1819  it  had  organized  the  Territory  of  Arkansas 
without  restriction  of  slavery ;  and  those  who  had  brought 
slavery  into  the  Territories  might,  with  considerable  show 
of  fairness,  claim  that  Congress  had  now  no  right  to  sud- 
denly assert  a  power  over  their  property  in  the  case  of 
Missouri  which  it  had  not  claimed  in  that  of  Louisiana.  < 

The  claim  is  so  far  well  founded  that  it  is  difficult  to 
deny  the  parallelism  between  Louisiana  and  Missouri.  The 
North,  therefore,  in  order  to  secure  the  rest  of  the  Loui- 
siana Purchase  in  its  normal  condition  of  freedom,  was 
compelled  to  pay  for  its  twenty  years'  laches  by  surren- 
dering the  modern  States  of  Missouri  and  Arkansas  to  the 
slaveholding  settlers  whom  it  had  allowed  to  enter  and 
possess  them. 

It  cannot,  however,  be  too  strongly  insisted  that  what 
Randolph  called  the  "dirty  bargain"  had  two  sides,  that 
the  South  had  formally  abandoned  all  future  claim  to 
establish  slavery  in  Territories  north  of  36°  30' ;  that  the 
North  had  tacitly  pledged  itself  not  to  exert  the  power 
of  Congress  to  abolish  slavery  in  the  Louisiana  Purchase 
south  of  that  line;  and  that  both  sides  had  recognized 
the  absolute  power  of  Congress  over  slavery  in  the  Terri- 
tories, without  which  the  compromise  could  never  have 
been  made.  In  1836,  when  admitting  Arkansas  as  a 


The  Slavery  Controversy 

State,  the  North  was  strongly  tempted  to  break  its  agree- 
ment, but  refused  to  do  so,  even  John  Quincy  Adams 
insisting  that  the  admission  of  Arkansas  as  a  slave  State 
was  "so  nominated  in  the  bond,"  and  must  be  punctually 
fulfilled.  In  1852-4,'  the  Southern  leaders  broke  the 
agreement  which  their  section  had  made. 

Attention  should  also  be  called  to  theVevil  effects  of 
the  Missouri  Compromise.] 

(j?  It  recognized  by  law  that  which  every  effort  should 
have  been  made  to  blot  out,  the  existence  of  a  geographi- 
cal line  which  divided  the  whole  people  into  two  sections, 
and  it  thus  went  so  far  to  establish  parties  on  this  geo- 
graphical line.  Jefferson's  eye  was  quick  to  recognize 
this  fact.  In  his  letter  of  April  22,  1820,  to  John  Holmes, 
he  says : 

"  This  momentous  question,  like  a  fire-bell  in  the  night, 
awakened  and  filled  me  with  terror.  I  considered  it  at  once 
as  the  knell  of  the  Union.  It  is  hushed,  indeed,  for  the  mo- 
ment; but  this  is  a  reprieve  only,  not  a  final  sentence.  A 
geographical  line,  coinciding  with  a  marked  principle,  moral 
and  political,  once  conceived  and  held  up  to  the  angry  passions 
of  men,  will  never  be  obliterated,  and  every  new  irritation  will 
mark  it  deeper  and  deeper. ' ' 

From  this  time  parties  were  to  be  really  national  only 
so  long  as  the  question  of  slavery  was  kept  under  cover; 
when  that  question  came  to  the  surface,  the  whole  con- 
trolling intelligence  of  the  South  spoke  in  the  language 
of  Dixon,  of  Kentucky,  in  1854:  "Sir,  upon  the  question 
of  slavery  I  know  no  whiggery  and  I  know  no  democracy 
— I  am  a  pro-slavery  man." 

f  2.  jln  this  compromise,  however  faithfully  kept  by  both 
sides,  lay  the  elements  of  future  conflict.  A  comparison 
of  the  western  territory  of  the  United  States  with  the 
country's  steady  rate  of  increase  in  population  should 

J  See  Kansas-Nebraska  Bill ;  Democratic  Party,  V. 


Compromises  in  American  History    119 

have  shown  the  statesmen  of  1820  that  the  southwestern 
boundary  was  so  abrupt  a  barrier  to  the  movement  of 
migration  that  it  could  not  endure.  When  it  should  be 
broken  down,  and  when  new  territory,  not  covered  by 
the  Missouri  Compromise,  should  be  added  to  the  United 
States,  it  was  not  to  be  expected  that  the  South  should 
then  submit  to  a  restriction  upon  slavery  which  it  had 
successfully  resisted  in  1820.  Bonds  which  cannot  re- 
strain a  child  will  not  be  very  effective  when  he  has  grown 
to  be  a  strong  man ;  and,  this  principle  of  a  division  of 
territory  once  admitted,  it  was  plain  that  future  acquisi- 
tions of  territory  would  be  for  the  benefit,  not  of  the 
whole  nation,  but  of  a  partnership  of  two,  whose  South- 
ern member  would  be  certain  to  claim  a  full  share. 

The  above  is  usually  considered  the  Missouri  Com- 
promise, though  there  were  some  difficulties  still  to  be 
settled,  i.  In  the  presidential  election  of  1820,  Missouri, 
though  not  yet  admitted  as  a  State,  chose  presidential 
electors,  and  many  of  the  Southern  members  sought  to 
have  their  votes  counted.  This  difficulty  was  avoided  by 
counting  the  votes  in  the  alternative.  2.  The  constitu- 
tion of  Missouri  was  found  to  discriminate  against  free 
colored  persons,  who  were  citizens  in  many  of  the  States. 
The  joint  resolution  of  March  2,  1821,  therefore,  ad- 
mitted the  State  on  condition  of  the  abrogation  of  this 
discrimination.  After  Maine  was  admitted  and  the  act 
had  passed  barring  slavery  north  of  36°  30',  Missouri  was 
still  kept  out.  Bad  faith  was  charged  and  threats  were 
made  of  undoing  the  compromise.  This  stage  of  the  con- 
troversy was  most  marked  by  heat  and  passion,  and  it 
was  in  this  part  of  the  controversy  that  Clay  was  instru- 
mental in  securing  a  peaceful  settlement.  Clay  had  little 
to  do  with  what  is  known  as  the  Missouri  Compromise 
and  he  was  not  the  author  of  it,  but  he  was  instrumental  in 
allaying  the  strife  that  arose  (after  the  compromise  had 
been  agreed  to)  over  Missouri's  constitution  and  the  last 


i2o  The  Slavery  Controversy 


stages  of  her  admission.  He  afterwards  expressed  sur- 
prise that  he  had  become  so  generally  reputed  to  be  the 
author  of  this  compromise.1 

COMPROMISE  OF  1850. —  The  principle  of  the  Mis- 
souri Compromise,  the  supreme  control  of  Congress  over 
the  Territories,  even  in  the  regulation  or  abolition  of  sla- 
very, remained  undisputed  for  nearly  thirty  years.  It  had 
been  recognized  in  1820  by  34  out  of  44  in  the  Senate 
(the  vote  on  the  Thomas  amendment),  by  134  out  of  176 
in  the  House,  by  President  Monroe,  and  by  all  his  Cabi- 
net, which  included  John  C.  Calhoun  and  Wm.  H.  Craw- 
ford from  the  South.  It  received  a  new  endorsement  in 
the  joint  resolution  for  the  admission  of  Texas  in  1845, 
whose  third  paragraph  forever  prohibited  slavery  in 
States  to  be  formed  from  the  new  territory  north  of  36° 
30'  north  latitude. 

The  affirmative  vote  in  this  instance  included  such 
representative  Southerners  as  Armistead  Burt,  Howell 
Cobb,  Cave  Johnson,  Rhett,  Slidell,  A.  H.  Stephens, 
Jacob  Thomson,  Tucker,  and  Yancey,  though  their  vote 
was  prompted,  not  by  any  desire  to  make  any  Territory 
free,  but  by  a  determination  to  divide  the  new  territory 
t>y  the  geographical  line  which  Jefferson  had  so  much 
dreaded,  and  thus  by  implication  to  extend  slavery  to 
the  southern  portion  of  it. 

The  Mexican  war  brought  a  new  addition  of  territory, 
and,  from  the  first  prospect  (in  1846)  of  its  acquisition, 
many  Northern  delegates  renewed  the  claim  that  it  was 
normally  free  soil,  and  must  not  be  opened  to  slavery.* 
The  Wilmot  Proviso  was  essentially  the  same  as  the  Tall- 
madge  proviso  above  mentioned,  and  was  defended  on 
the  same  ground,  the  normal  freedom  of  national  terri- 
tory. Additional  argument  in  its  favor  was  drawn  from 

lSee  Clay's  speech  of  February  6,  1850  ;  and  Douglas's  speech  of  March 
3,  1854,  on  the  Kansas-Nebraska  Bill. 
*  See  Wilmot  Proviso. 


Compromises  in  American  History    121 

the  undisputed  fact  that  the  Territory  just  acquired  was 
already  free  by  the  organic  law  of  Mexico;  but  this 
reasoning  was  unnecessary,  unless  as  cumulative,  for  the 
case  was  strong  enough  already.1 

For  three  years  (August,  1846,  to  December,  1849), 
the  struggle  over  the  Wilmot  Proviso  continued,  regu- 
larly taking  a  sectional  form.  The  new  Territories  were 
repeatedly  organized  by  the  House,  with  the  Wilmot 
Proviso,  and  as  regularly  the  bills  were  lost  in  the  Sen- 
ate, where  the  Southern  vote  was  always  aided  by  a 
sufficient  number  of  Northern  Senators  to  form  a  ma- 
jority. But,  though  the  South  thus  stood  strictly  on  the 
defensive,  the  Northern  Democrats  had  in  the  meantime 
elaborated  a  new  party  dogma,  popular  sovereignty,  or 
squatter  sovereignty,  by  which  they  hoped  to  retain  in 
the  party  both  its  Northern  and  its  Southern  vote.  As 
at  first  enunciated,  it  declared  only  that  Congress  ought 
not  (as  a  matter  of  policy)  to  interfere  with  slavery  in 
the  Territories;  as  elaborated  in  the  Kansas-Nebraska 
bill  in  1854,  it  went  to  the  further  ground  that  Congress 
had  no  constitutional  right  to  do  so.  During  this  period 
of  contest  the  Free-Soil  party  began  its  brief  existence.2 

In  the  South  the  excitement  among  the  controlling 
body  of  slaveholders  had  grown  so  intense  that  its  cul- 
mination marks  the  year  1850  as  the  point  where  the 
theory  of  secession  first  began  to  shade  into  possibility. 
The  people  of  the  still  unorganized  Territory  of  Cali- 
fornia, whose  population  had  been  suddenly  and  enor- 
mously increased  by  the  discovery  of  gold,  had  formed  a 
State  constitution,  June  3,  1849,  expressly  prohibiting 
slavery.  During  the  year  the  excitement  was  increased 
by  the  action  of  the  people  of  New  Mexico,  to  which 
Texas  asserted  a  territorial  claim,  in  forming  a  State 
constitution,  May  15,  1850. 

1  See  Slavery  ;  Territories  ;  Dred  Scott  Case,  IV. 
*  See  also  Democratic  Party,  IV. ;  Whig  Party,  II. 


122  The  Slavery  Controversy 


This  was  interpreted  as  an  effort  to  add  another  to  the 
growing  column  of  free  States,  and  an  army  was  at  once 
raised  in  Texas  to  extend  the  jurisdiction  of  that  State 
over  the  disputed  territory.  A  convention  of  slave  State 
delegates  met  at  Nashville,  Tennessee,  June  2,  1850,  and 
declared  any  exclusion  of  slaveholders  and  their  property 
from  the  new  Territories  to  be  an  injury  and  an  insult  to 
the  South;  and  the  various  Southern  Legislatures  had 
instructed  their  governors,  in  the  event  of  the  success 
of  the  Wilmot  Proviso,  to  call  State  conventions  in  order 
to  secure  concert  of  action  against  a  common  danger. 

A  new  Congress  met  in  December,  1849.  The  Senate 
was  strongly  Democratic ;  in  the  House  the  Free-Soilers 
held  the  balance  of  power  between  the  Democrats  and 
Whigs,  so  that  there  was  no  party  majority,  and  the 
Speaker  was  only  elected  on  the  sixty-third  ballot  by  a 
plurality  vote.  It  was  not  until  January  n,  1850,  that 
the  House  succeeded  in  choosing  all  its  officers,  and 
became  ready  for  legislation.  Ten  days  afterward  a 
message  from  President  Taylor  announced  that  he  had 
advised  the  new  Territories  to  apply  for  admission  as 
States,  and  that  California  had  already  formed  a  State 
constitution.  Southern  members  objected  to  the  admis- 
sion of  California,  ostensibly  because  of  the  unreasonably 
large  amount  of  territory  claimed  by  the  new  State;  but 
California  was  only  about  one  third  as  large  as  Texas 
claimed  to  be,  and  the  objection  really  lay  to  the  anti- 
slavery  clause  in  the  California  constitution. 

Many  of  the  Southern  members  were  determined  to 
compel  California  to  become  a  Territory  before  becoming 
a  .State,  and  a  bill  to  organize  "the  Territories  of  Cali- 
fornia, Deseret  (Utah),  and  New  Mexico"  was  introduced, 
January  i6th,  in  the  Senate.  January  29th,  Clay  intro- 
duced a  series  of  eight  resolutions,  the  basis  of  the  final 
Compromise  of  1850,  which  were  in  substance  as  follows: 
i.  The  admission  of  California,  "with  suitable  boun- 


JT- 

Compromises  in  American  History  (  123 

daries,"  and  without  any  restriction  as  to  slavery.  2. 
The  organization  of  territorial  governments  in  the  rest  of 
the  Mexican  annexation,  without  any  reference  to  sla- 
very, since  "slavery  did  not  exist  by  law,  and  was  not 
likely  to  be  introduced"  into  them.  3.  That  Texas 
should  not  include  any  part  of  New  Mexico.  4.  That 
Texas  should  be  paid  $  -  for  giving  up  her  claim  to 
New  Mexico.  5.  Non-interference  with  slavery,  and,  6, 
abolition  of  the  slave  trade,  in  the  District  of  Columbia. 
7.  A  more  effectual  fugitive  slave  law.  8.  Non-interfer- 
ence with  the  inter-State  slave  trade. 

These  resolutions  were  debated  for  two  months  after 
February  5th,  and  the  debate  ended,  April  igth,  by  their 
reference  to  a  compromise  committee  of  thirteen,  of 
which  Clay  was  chairman.  May  8th,  the  committee  re- 
ported the  following  propositions,  which  finally  made  up 
the  Compromise  of  i8$o:(£?thQ  admission  of  any  new 
States  properly  formed  from  Texas,  with  or  without 
slavery,  as  the  people  of  the  new  State  should  decide  ; 


the  admission  of  California  on  similar  terms  ;  3,  the  organ- 
ization of  New  Mexico  and  Utah  Territories  without  the 
Wilmot  Proviso  ;  4,  the  passage  of  the  last  two  measures 
in  one  bill  ;  5,  the  payment  to  Texas  of  an  indemnity  of 
$10,000,000  for  the  abandonment  of  her  claim  to  New 
Mexico  ;  6,  the  passage  of  a  more  effective  fugitive  slave 
law  ;  7,  the  abolition  of  the  slave  trade,  but  not  of  sla- 
very, in  the  District  of  Columbia. 

Many  Senators  desired  to  consider  these  measures 
separately,  but  the  committee  had  decided  to  embrace 
them  all  in  one  bill,  of  four  parts,  commonly  called  the 
omnibus  bill.  Part  i  was  in  39  sections  :  §§  1-4  for  the 
admission  of  California;  §§  5-21  for  the  organization  of 
the  Territory  of  Utah,  with  a  prohibition  against  the  pas- 
sage of  laws  "in  respect  to  African  slavery"  by  its  Legis- 
lature; §§  22-38  for  the  organization  (with  the  same 
prohibition)  of  the  Territory  of  New  Mexico  ;  and  §  39 


124  The  Slavery  Controversy 

for  the  fulfilment  of  proposition  5  above.  Parts  2  and 
3,  in  three  sections,  carried  out  proposition  6  above,  and 
formed  the  celebrated  Fugitive  Slave  law.  Part  4,  in  two 
sections,  carried  out  proposition  7  above. 

The  omnibus  bill  was  debated  until  the  last  day  of 
July,  when  it  was  discovered  that  successive  amendments 
had  cut  out  all  its  provisions  except  the  Utah  bill,  which 
was  passed  August  ist. 

By  this  time  the  martial  preparations  of  Texas,  backed 
by  offers  of  aid  from  other  Southern  States,  had  shown 
some  compromise  to  be  necessary,  if  war  was  not  to  fol- 
low. The  other  bills,  which  had  failed  together,  were 
now  passed  separately  by  the  Senate:  the  Texas  bill, 
August  roth,  30  to  20 ;  the  California  bill,  August  I3th, 
34  to  18;  the  New  Mexico  bill,  August  I4th,  27  to  10; 
the  Fugitive  Slave  bill,  August  23d,  27  to  12;  and  the 
District  of  Columbia  bill,  September  I4th,  33  to  19.  In 
the  House  the  Texas  and  New  Mexico  bills  were  passed 
together,  September  4th,  108  to  97;  the  California  bill, 
September  7th,  150  to  56;  the  Utah  bill,  September  7th, 
97  to  85  ;  the  Fugitive  Slave  bill,  September  I2th,  109  to 
75;  and  the  District  of  Columbia  bill,  September  I7th, 
124  to  47.  All  the  provisions  of  Clay's  scheme  of  com- 
promise were  therefore  finally  successful. 

The  gist  of  the  compromise,  as  stated  by  Clay  himself 
in  debate,  July  22d,  was,  on  the  one  hand,  forbearance 
by  the  North  to  insist  upon  the  application  of  the  Wil- 
mot  Proviso  to  Utah  and  New  Mexico,  and,  on  the  other 
hand,  forbearance  by  the  South  to  insist  upon  the  ex- 
press introduction  of  slavery  into  those  Territories;  all 
the  other  measures  were  only  feathers  to  fly  the  arrow. 
The  North  was  to  obtain  the  effectual  application  of  the 
Wilmot  Proviso  to  California,  by  its  admission  as  a  free 
State,  and  also  the  abolition  of  the  slave  trade  in  the 
District  of  Columbia;  the  South  was  to  obtain  an  effec- 
tive fugitive  slave  law,  and  an  indemnity  to  Texas,  of 


Compromises  in  American  History    125 

whose  bonds  many  of  the  Southern  leaders  were  holders. 
There  was  no  application  of  popular  sovereignty  to  the 
new  Territories,  for  their  Legislatures  were  forbidden  to 
pass  laws  on  the  subject  of  slavery ;  nor  was  there  any 
settlement  of  the  status  of  slavery  there,  for  the  commit- 
tee's bill,  as  stated  by  Clay  on  introducing  it,  did  not 
decide  whether  slavery  did  or  did  not  exist  in  Utah  or 
New  Mexico,  only  forbidding  the  Legislatures  to  prohibit 
it  if  it  existed,  or  to  introduce  it  if  it  did  not  exist. 
Clay's  own  belief,  as  he  then  stated  it,  was  that  slavery 
did  not  exist  there,  having  been  abolished  by  Mexican 
law. 

The  whole  arrangement  was  evidently  a  mere  make- 
shift, intended  to  avoid  the  question  of  slavery  in  Utah 
and  New  Mexico,  in  the  hope  that  these  Territories 
would  soon  form  State  governments  and  decide  the  mat- 
ter for  themselves.  There  is  not  the  slightest  perceptible 
evidence,  either  in  the  omnibus  bill  or  in  the  debates,  of 
any  intention  to  repeal,  directly  or  indirectly,  the  Mis- 
souri Compromise  or  its  prohibition  of  slavery  north  of 
the  parallel  of  36°  30' ;  nor  did  the  Texas  bill  make  any 
repeal  of  the  prohibition  of  slavery  in  new  States  to  be 
formed  from  Texas  north  of  the  Missouri  Compromise 
line,  which  had  been  first  imposed  by  the  joint  resolution 
admitting  Texas.  Had  the  Compromise  of  1850,  as  it  was 
understood  by  its  framers  and  by  the  two  parties  which 
formally  indorsed  it  in  1852,  been  maintained,  there 
seems  to  be  very  little  doubt  that  the  United  States 
might  have  prolonged  for  many  years  the  desperate  effort 
to  "  endure  one-half  slave  and  one-half  free."  The 
Kansas-Nebraska  bill  was  really  as  much  a  repeal  of  the 
Compromise  of  1850  as  of  the  Compromise  of  1820.' 

See  (I. -III.),  authorities  under  Convention  of  1787; 
(IV. :  Missouri  Compromise),  6  Hildreth's  United  States, 
661 ;  i  Greeley's  American  Conflict,  74;  I  von  Hoist's 

1  See  Slavery,  Secession,  Rebellion. 


i26  The  Slavery  Controversy 

United  States,  356;  6,  7  Benton's  Debates  of  Congress; 
3  Spencer's  United  States,  322 ;  I  Colton's  Life  and  Times 
of  Clay,  276;  Story's  Commentaries,  §  1316,  arid  other 
authorities  under  Territories ;  Giddings's  History  of  the 
Rebellion,  51;  I  Draper's  Civil  War  (introd.  chap.);  I 
Wilson's  Rise  and  Fall  of  the  Slave  Power,  135  ;  4  Jeffer- 
son's Works  (ed.  1829),  323;  i  Benton's  Thirty  Years' 
View,  8;  H.  Wheaton's  Life  of  W.  Pinkney,  573  (the  best 
argument  for  the  Southern  view  of  the  question) ;  2  A. 
H.  Stephens's  War  between  the  States,  13152  Garland's 
Life  of  Randolph,  1 18 ;  authorities  under  Slavery ;  the  act 
admitting  Missouri  is  in  3  Stat.  at  Large,  645,  and  the 
proclamation  announcing  the  admission  is  in  6  Stat.  at 
Large  (Bioren  and  Duane's  edit.),  666;  (V. :  Compromise 
of  1850),  3  von  Hoist's  United  States-,  I  Greeley's  Ameri- 
can Conflict,  198;  16  Benton's  Debates  of  Congress,  384; 
3  Spencer's  United  States,  476;  Giddings's  History  of  the 
Rebellion,  309;  2  Colton's  Life  and  Speeches  of  Clay;  2 
Benton's  Thirty  Years'  View,  694,  742,  and  other  authori- 
ties under  Wilmot  Proviso ;  5  Webster's  Works,  324  (his 
7th  of  March  speech);  Harvey's  Reminiscences  of  Web- 
ster; 2  Curtis's  Life  of  Webster,  381 ;  2  Wilson's  Rise  and 
Fall  of  the  Slave  Power,  241 ;  4  Stryker's  American  Regis- 
ter, 505,  582  (the  latter  being  the  proposed  constitution 
of  the  State  of  New  Mexico);  Schuckers's  Life  of  S.  P. 
Chase,  105 ;  2,  3  Sumner's  Speeches;  2  A.  H.  Stephens's 
War  between  the  States,  165  ;  Buchanan's  Buchanan  s 
Administration,  19;  2  Story's  Life  of  Story,  392,  and 
other  authorities  under  Fugitive  Slave  Law,  Slavery ; 
Rhodes's  History  of  U.  S.;  Schouler's  History  of  U.  S.  ; 
Bancroft's  Seward ;  Burgess's  Middle  Period ;  Wood- 
burn's  "  Historical  Significance  of  the  Missouri  Compro- 
mise," Am.  Hist.  Assoc.  Papers,  1893. 


CHAPTER    VI 

THE  FUGITIVE   SLAVE 

AFTER  the  Compromise  of  1850  the  country  settled 
down  in  the  hope  of  having  peace  on  the  subject 
of  slavery.  (The  settlement  of  1850  was  regarded  as  a 
"finality,"  and  the  political  and  party  forces  of  the  coun- 
try brought  every  agency  and  influence  to  bear  to  prevent 
any  reopening  of  the  agitation./  The  great  body  of  pub- 
lic sentiment  in  both  sections  accepted  the  settlement, — 
except  the  extreme  pro-slavery  disunionists  and  secession- 
ists in  the  South  and  the  radical  Abolitionists  and  Free- 
Soilers  of  the  North.  The  Democratic  party  was  reunited 
in  the  election  of  1852  and  the  independent  Free-Soil 
vote  fell  off  almost  one  half  from  that  of  1848.' 

There  was  one  factor  in  the  situation,  however,  that 
kept  the  subject  of  slavery  before  the  people  of  the  North 
and  which  continued  to  offer  an  opportunity  for  agitation 
and  excitement.  That  was  the  fugitive  slave.  But  for 
the  reopening  of  the  territorial  question  by  the  Kansas- 
Nebraska  act  in  1854  and  the  occasional  excitement  and 
resistance  in  opposition  to  the  execution  of  the  Fugitive 
Slave  law,  it  is  reasonable  to  suppose  that  the  country 
might  have  continued  at  peace  on  slavery  for  some  years 
to  come.  But  the  Fugitive  Slave  law  and  its  operation 
offered  frequent  occasions  to  the  anti-slavery  men  to 
renew  the  agitation. 

Before  the  American  Revolution  the  black  race  in  the 

1  See  Parties. 
127 


is8  The  Slavery  Controversy 

colonies  had  generally  been  impressed  with  the  artificial 
character,  in  the  eye  of  the  law.  of  property.1  Within 
his  own  colony  an  owner  had  the  same  right  to  reclaim 
his  slave  as  to  reclaim  any  other  stolen,  lost,  or  estray 
property ;  but  the  reclamation  of  a  slave  who  had  escaped 
to  another  colony  depended  upon  the  intercolonial  comity 
which  permitted  it.  Nor  was  there  any  legal  authority 
to  reclaim  fugitive  slaves  under  the  Articles  of  Confed- 
eration, except  that  which  was,  perhaps,  implied  in 
confining  to  "the  free  inhabitants  of  these  States"  the 
enjoyment  of  "the  privileges  and  immunities  of  free  citi- 
zens in  the  several  States."  Reclamations  of  fugitive 
slaves,  though  rare,  sometimes  occurred,  but  were  still 
dependent  on  inter-State  comity. 

In  the  formation  of  the  Constitution  by  the  convention 
of  1787,  it  seems  to  have  been  an  implied  part  of  one  of 
the  compromises2  that  a  provision  should  be  inserted  for 
the  reclamation  of  fugitive  slaves.3 

"  By  this  settlement  "  [compromise],  said  C.  C.  Pinckney,  in 
the  South  Carolina  convention,  "  we  have  obtained  a  right  to 
recover  our  slaves  in  whatever  part  of  America  they  may  take 
refuge,  which  is  a  right  we  had  not  before.  In  short,  con- 
sidering all  circumstances,  we  have  made  the  best  terms  for 
the  security  of  this  species  of  property  it  was  in  our  power  to 
make.  We  would  have  made  it  better  if  we  could;  but,  on 
the  whole,  I  do  not  think  them  bad." 

[The  result  was  the  fugitive  slave  provision.4 )  In  this, 
slaves  were  indirectly  called  "persons  held  to  service  or 
labor  in  one  State,  under  the  laws  thereof."     The  pro- 
vision was  mandatory,  but  upon  no  particular  officer  or 
branch  of  the  Government;  it  simply  directed  that  tfie 

1  See  Slavery. 

2  See  Compromises. 

3  A  different  view  is  expressed  by  the  editor  under  Compromises. 

4  See  Constitution,  Art.  IV.,  §  2,  *[  3. 


The  Fugitive  Slave  129 

fugitive  "shall  be  delivered  up,  on  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due."  If  this  was 
only  a  direction  to  the  States,  it  is  evident  that  the  only 
recourse  for  relief  under  it  was  to  State  courts ;  and  that, 
if  a  State  should  refuse  or  neglect  to  execute  and  obey 
this  provision  of  the  Constitution,  there  was  no  remedy. 

Such  has  steadily  been  held  as  the  construction  of  the 
kindred  provision,  as  to  extradition  of  criminals,  imme- 
diately preceding  the  fugitive-slave  provision, and  couched 
in  much  the  same  language.  Though  the  surrender  of 
criminals  has  sometimes  been  refused,  as  by  Massachu- 
setts in  the  Kimpton  case  in  August,  1878,  no  further 
remedy  has  been  sought  for,  nor  has  Congress  ever 
undertaken  to  pass  any  general  inter-State  extradition 
law.  The  only  real  argument  in  favor  of  the  power  and 
duty  of  Congress  to  pass  a  general  fugitive  slave  law  was 
the  absence  of  any  such  common  self-interest  to  induce 
the  Northern  States  to  execute  faithfully  the  fugitive 
slave  provision  of  the  Constitution,  as  that  which  was 
usually  certain  to  induce  all  the  States  to  surrender  fugi- 
tive criminals. 

The  first  Fugitive  Slave  law)  entitled  "An  act  respect- 
ing fugitives  from  justice,  and  persons  escaping  from  the 
service  of  their  masters,"  originated  in  the  Senate,  passed 
the  House  without  debate  by  a  vote  of  48  to  7,  and  was 
approved  by  President  Washington,  February  12,  1793. 
It  was  in  four  sections.  The  first  two,  applying  to  fugi- 
tive criminals,  merely  specified  the  manner  in  which  the 
demand  was  to  be  made  upon  the  governor,  and  made 
no  attempt  to  enforce  a  surrender  of  the  criminal,  if  it 
should  be  refused.  An  abstract  of  the  last  two  sections, 
respecting  fugitives  from  labor,  is  as  follows :  3,  the  owner, 
his  agent  or  attorney,  was  empowered  to  seize  his  fugitive 
slave,  take  him  before  a  circuit  or  district  court  of  the 
United  States,  or  before  any  magistrate  of  the  county, 
city,  or  town  corporate,  wherein  the  arrest  should  be 

VOL.  ii. — g. 


i3°  The  Slavery  Controversy 

made,  and  make  proof  by  oral  testimony  or  affidavit  of 
his  ownership,  and  the  certificate  thereof  by  the  judge  or 
magistrate  was  to  be  sufficient  warrant  for  the  removal  of 
the  fugitive  to  the  State  or  Territory  from  which  he  had 
fled ;  4,  rescue,  concealment,  or  obstructing  the  arrest  of  a 
fugitive  slave  were  made  offences  liable  to  a  fine  of  $50x3. 

Before  1815  the  increase  of  the  domestic  slave  trade 
from  the  border  States  to  the  extreme  South  had  brought 
out  complaints  of  the  kidnapping  of  free  blacks  in  the 
border  free  States,  under  pretence  that  they  were  fugitive 
slaves.  In  1817  a  Senate  committee  reported  a  bill  to 
modify  the  law,  but  it  was  never  considered.  The  fol- 
lowing year  the  Baltimore  Quakers  renewed  the  question 
by  a  petition  to  Congress  for  some  security  to  free  blacks 
against  kidnapping.  On  the  other  hand,  the  border  slave 
States  complained  of  the  increased  insecurity  of  slave 
property,  and  a  member  of  the  House  from  Virginia  in- 
troduced a  bill  to  increase  the  efficiency  of  the  Fugitive 
Slave  law.  It  was  intended  to  enable  the  claimant  to 
prove  his  title  before  a  judge  of  his  own  State,  and  thus 
to  become  entitled  to  an  executive  demand  upon  the 
Governor  of  the  State  in  which  the  fugitive  had  taken 
refuge ;  and  to  any  writ  of  habeas  corpus  it  was  to  be  a 
sufficient  return  that  the  prisoner  was  held  under  the 
provisions  of  this  act. 

Efforts  to  amend  the  bill  by  securing  the  full  benefit  of 
the  writ  of  habeas  corpus  to  the  fugitive,  and  by  making 
the  State  courts  of  the  State  in  which  the  arrest  was 
made  the  arbiter  of  title,  were  voted  down,  and  the  bill 
was  carried  January  30,  1818,  by  a  vote  of  84  to  69.  In 
the  Senate  it  was  passed,  March  I2th,  with  amendments 
requiring  other  proofs  than  the  claimant's  affidavit,  and 
limiting  the  existence  of  the  act  to  four  years.  April 
loth  the  House  refused  to  consider  the  bill  further. 

The  great  objection  to  the  act  of  1793  was  its  attempt 
to  impose  service,  under  the  act,  upon  magistrates  who 


The  Fugitive  Slave 

were  officials  of  the  States,  not  of  the  Federal  Govern- 
ment, and  who  could  not,  therefore,  properly  be  called 
upon  to  execute  Federal  laws. 

The  question  was  brought  before  the  Supreme  Court 
(in  the  case  of  Prigg  vs.  Pennsylvania,  cited  below),  as 
follows:  The  State  of  Pennsylvania  had  passed  an  act 
providing  a  mode  for  the  rendition  of  fugitive  slaves  to 
their  owners  by  State  authorities,  and  making  the  seizure 
of  fugitive  slaves  in  any  other  way  a  felony.  One  Prigg, 
as  agent  of  a  Maryland  slave-owner,  found  a  fugitive 
slave  in  Pennsylvania,  and,  when  the  local  magistrate 
refused  to  award  her  to  him,  carried  her  off  to  Maryland 
vi  et  armis.  For  this  he  was  indicted  in  Pennsylvania,  \ 
and  the  two  States  amicably  agreed  that  judgment  should 
be  entered  against  him,  in  order  that  an  appeal  might  be 
taken  to  the  Supreme  Court. 

The  Supreme  Court,  as  its  opinion  was  given  by  Story, 
held  that  the  Pennsylvania  statute  was  unconstitutional; 
that  the  power  to  legislate  on  this  subject  was  exclusively 
in  Congress;  but  that  the  duty  of  executing  Federal  laws 
could  not  be  imposed  upon  State  magistrates  or  officers. 
Taneyj  dissenting  in  part,  held  that  the  Constitution  was 
a  part  of  the  supreme  law  of  every  State,  which  the  State 
could  enforce,  but  could  not  abrogate  or  alterj_and_that 
the  right  of  a  master  to  seize  his  fugitive  slave  was  thus 
a  part  of  the  organic  law  of  each  State,  which  the  State 
could  enforce,  but  could  not  abrogate  or  alter.  The 
doubts  expressed  by  the  court  as  to  the  duty  of  State 
magistrates  caused  the  passage  by  various  Northern 
Legislatures  of  acts  guarding  or  prohibiting  the  execution 
of  the  Fugitive  Slave  law  by  State  magistrates.1 

The  passage  of  a  more  effective  fugitive  slave  law 
was  one  of  the  essential  features  of  the  Compromise  of 
i85o,3;and  formed  a  part  of  the  original  "omnibus bill." 

1  See  Personal  Liberty  Laws. 

2  See  Compromises. 


The  Slavery  Controversy 

As  approved  by  President  Fillmore,  September  18, 
1850,  it  consisted  of  ten  sections,  an  abstract  of  which  is 
as  follows:  I,  the  powers  of  judges  under  the  act  of  1793 
were  now  given  to  United  States  commissioners;  2^  the 
territorial  courts  were  also  to  have  the  power  of  appoint- 
ing such  commissioners ;  3,  all  United  States  courts  were 
so  to  enlarge  the  number  of  commissioners  as  to  give 
facilities  for  the  arrest  of  fugitive  slaves;  4,  commission- 
ers were  to  have  concurrent  jurisdiction  with  United 
States  judges  in  giving  certificates  to  claimants  and  order- 
ing the  removal  of  fugitive  slaves;;?/  United  States  mar- 
shals and  deputies  were  required  to  execute  writs  under 
the  act,  the  penalty  for  refusal  being  a  fine  of  $1000,  the 
marshal  being  further  liable  on  his  bond  for  the  full  value 
of  any  slave  escaping  from  his  custody  "with  or  without 
the  assent"  of  the  marshal  or  his  deputies;  the  commis- 
sioners, or  officers  appointed  by  them,  were  empowered 
to  call  the  bystanders  to  help  execute  writs;  and  all 
good  citizens  were  required  to  aid  and  assist  when  re- 
quired;(^yon  affidavit  before  any  officer  authorized  to 
administer  an  oath,  United  States  courts  or  commission- 
ers were  to  give  the  claimant  a  certificate  and  authority  to 
remove  his  fugitive  slave  whence  he  had  escaped ;  in  no 
case  was  the  testimony  of  the  fugitive  to  be  admitted  in 
evidence ;  and  the  certificate,  with  the  seal  of  the  court, 
was  to  be  conclusive  evidence  of  the  claimant's  title,  thus 
cutting  off  any  real  benefit  of  the  writ  of  habeas  corpus 
from  the  fugitive ;  7,  imprisonment  for  six  months,  a  fine 
of  $1000,  and  civil  damages  of  $1000  to  the  claimant,  were 
to  be  the  punishment  for  obstructing  an  arrest,  attempt- 
ing a  rescue,  or  harboring  a  fugitive  after  notice ;  8,  com- 
missioners were  to  be  paid  fees  of  $10  when  a  certificate 
was  granted,  and  of  $5  when  their  decision  was  in  favor  of 
the  alleged  fugitive ;  fees  of  other  officers  were  to  follow 
the  rules  of  the  court;  9,  on  affidavit  by  the  claimant 
that  he  apprehended  a  rescue,  the  marshal  was  not  to 


The  Fugitive  Slave  A  33 

surrender  the  fugitive  to  the  claimant  at  once,  but  was 
first  to  take  him  to  the  State  whence  he  had  fled,  em- 
ploying any  assistance  necessary  to  overcome  the  rescuing 
force;  id,  any  claimant,  by  affidavit  before  any  court  of 
record  in  his  own  State  or  Territory,  might  obtain  a 
record  with  a  general  description  of  the  fugitive,  and  an 
authenticated  copy  of  such  record  was  to  be  conclusive 
evidence,  on  proof  of  the  identity  of  the  fugitive,  for 
issuing  a  certificate  in  any  State  or  Territory  to  which 
the  slave  had  fled. 

An  examination  of  this  long  and  horribly  minute  act 
will  show  the  futility  of  the  most  taking  and  popular 
criticism  upon  it,  that  it  employed  all  the  force  of  the 
United  States  in  "slave  catching."  This  was  just  what 
the  act  was  bound  to  do,  if  it  attempted  to  enforce  the 
fugitive  slave  provision  of  the  Constitution,  and  yet  avoid 
the  imposition  of  the  duty  upon  State  officials.  Nor  is 
there  any  more  force  in  the  objection  to  the  difference  in 
the  commisioner's  fee  for  detaining  and  for  releasing  a 
fugitive :  the  difference  in  fees  was  the  price  of  the  evi- 
dent difference  in  the  labor  involved  in  the  two  cases; 
and  no  accusation  was  ever  brought  against  a  commis- 
sioner of  having  sold  his  honor  for  the  additional  $5. 

But  the  refusal  of  a  jury  trial  to  the  alleged  fugitive, 
for  the  ascertainment  of  his  identity,  was  a  defect  so  fatal 
as  to  make  the  law  seem  not  only  unconstitutional,  but 
absolutely  inhuman.  If  the  alleged  fugitive  were  a  slave 
(i.  e.,  property),  his  value  was  more  than  $20,  above''1 
which  limit  the  Constitution  (Amendment  VII.)  guaran- 
tees a  jury  trial  for  title;  if  he  were  a  free  man,  his  right 
to  a  jury  trial  in  a  case  affecting  his  life  or  liberty  dates 
from  Magna  Charta,  and  is  among  the  rights  reserved, 
by  Amendment  X.,  from  the  power  of  both  the  United 
States  and  the  States  "to  the  people"  ;  and  in  denying  a 
jury  trial  in  either  case  Congress  seems  to  have  been  an 
inexcusable  trespasser.  Webster  proposed,  and  Dayton, 


i34)  The  Slavery  Controversy 


of  New  Jersey,  offered,  an  amendment  providing  for  a 
jury  trial;  but  this  was  voted  down,  on  the  ground  that 
a  fugitive  slave  was  property,  and  yet  that  the  owner's 
title  was  not  disputed  or  in  question,  so  as  to  require  a 
jury  trial.  But  this  was  evidently  begging  the  question, 
for,  I,  an  alleged  fugitive,  if  a  free  man,  evidently  had 
the  right  to  a  jury  trial  to  decide  whether  he  was  prop- 
erty or  a  person ;  and,  2,  no  Federal  law  could  make  the 
affidavit  of  a  citizen  of  one  State  so  "conclusive"  as  to 
exclude  entirely  the  affidavit  of  a  citizen  of  another  State, 
as  any  alleged  fugitive  might  possibly  be. 

Against  this  evil  feature  of  the  act  many  Northern 
Legislatures  promptly  guarded  by  passing  new  or  stronger 
"personal  liberty  laws,"  and  thus  practically  "nullifying" 
it.1 

The  passage  of  the  act  gave  a  sudden  and  great  impetus 
to  the  search  for  fugitive  slaves  in  the  North,  which  was 
accompanied  by  various  revolting  circumstances,  brutal- 
ity in  the  captors,  bloodshed  by  the  captors  or  captured, 
or  both,  and  attempted  suicide  to  avoid  arrest.  From 
many  localities  in  the  North,  persons  who  had  long  been 
residents  were  suddenly  seized  and  taken  South  as  fugi- 
tive slaves ;  and  these  latter  arrests  were  more  efficacious 
than  the  former  in  rousing  Northern  opposition  to  the 
law,  for  they  seemed  to  show  that  not  merely  the  execu- 
tion but  the  principle  of  the  law  was  unjust  and  illegal. 
Margaret  Garner's  attempted  murder  of  her  children,  in 
Ohio,  to  save  them  from  slavery,  and  Anthony  Burns's 
arrest  in  Boston,  were  the  cases  which  made  most  noise 

at  the  time. 

~~_ 

The  political  consequences  of  the  passage  of  the  Fugi- 
tive Slave  law  of  1850  were  not  only  the  revival  and 
enforcement  of  the  personal  liberty  laws,  but  the  demand, 
first  by  the  Free-Soil  party,  and  then  by  many  members 
of  the  Republican  party,  for  the  repeal  of  the  Fugitive 

~f 

1  See  Nullification,  Personal  Liberty  Laws. 


The  Fugitive  Slave  135 

Slave  law,/  which  the  South  considered  irrepealable,  as 
part  of  a  "Compromise.  The  success  of  the  Republican 
party,  in  1860,  by  a  vote  of  the  North,  was  therefore 
construed  by  secessionists  at  the  South  as  a  final  refusal 
by  the  North  to  enforce  the  Compromise  of  1850,  and 
was  the  principal  excuse  for  secession. 

The  Fugitive  Slave  law  was  not  finally  repealed  until 
June  28,  1864.' 

PERSONAL- LIBERTY  LAWS. — Statutes  passed  by  the 
Legislatures  of  various  Northern  States,  during  the  exist- 
ence of  the  Fugitive-Slave  laws,  for  the  purpose  of 
securing  to  alleged  fugitives  the  privilege  of  the  writ  of 
habeas  corpus  and  the  trial  by  jury,  which  those  laws 
denied  them. 

In  1840  New  York  passed  an  act  securing  a  trial  by  j 
jury  to  persons  accused  of  being  fugitive  slaves.  This 
was  the  first  real  "Personal-Liberty  law,"  other  previous] 
State  Statutes  being  ostensibly  or  really  designed  to  as- 
sist in  the  rendition  of  fugitives ;  and  even  this  statute 
soon  fell  into  disuse  and  was  practically  forgotten.  The 
case  of  Prigg  vs.  Pennsylvania  was  decided  in  1842,  and 
in  1843  Massachusetts  and  Vermont  passed  laws  prohibit- 
ing State  officers  from  performing  the  duties  exacted  of 
them  by  the  first  Fugitive-Slave  law,  and  forbidding  the 
use  of  the  jails  of  the  State  for  the  detention  of  fugitives. 
In  1847  and  1848  Pennsylvania  and  Rhode  Island  passed 
similar  laws.  Other  States  refused  to  do  so. 

The  passage  of  the  Fugitive-Slave  law  of  1850,  which 
avoided  all  employment  of  State  officers,  necessitated  a 
change  in  the  Personal-Liberty  laws.  Accordingly,  new 
laws  were  passed  by  Vermont,  Rhode  Island,  and  Con- 
necticut in  1854,  by  Maine,  Massachusetts,  and  Michigan 
in  1855,  by  Wisconsin  and  Kansas  in  1858,  by  Ohio  in 
1859,  anc^  by  Pennsylvania  in  1860. 

These  laws  generally  prohibited  the  use  of  the  State's 

1  See  Compromises  ;  Slavery  ;  Republican  Party  ;  Abolition  ;  Secession. 


136  The  Slavery  Controversy 

jails  for  detaining  fugitives ;  provided  State  officers,  under 
various  names,  throughout  the  State,  to  act  as  counsel 
for  persons  alleged  to  be  fugitives;  secured  to  all  such 
persons  the  benefits  of  habeas  corpus  and  trial  by  jury; 
required  the  identity  of  the  fugitive  to  be  proved  by  two 
witnesses ;  forbade  State  judges  and  officers  to  issue  writs 
or  give  any  assistance  to  the  claimant;  and  imposed  a 
heavy  fine  and  imprisonment  for  the  crime  of  forcibly 
seizing  or  representing  as  a  slave  any  free  person  with  in- 
tent to  reduce  him  to  slavery.  New  Hampshire,  New 
York,  New  Jersey,  Indiana,  Illinois,  Iowa,  Minnesota, 
California,  and  Oregon  passed  no  full  Personal-Liberty 
laws;  but  there  were  only  two  of  these  States,  New  Jer- 
sey and  California,  which  gave  any  official  sanction  or 
assistance  to  the  rendition  of  fugitive  slaves,  though 
three  of  them,  Indiana,  Illinois,  and  Oregon,  did  so  in- 
directly, by  prohibiting  the  entrance  within  their  borders 
of  negroes  either  slave  or  free.  In  the  other  States  named 
above,  the  action  of  the  legislative,  judiciary,  or  executive 
was  generally  so  unfriendly  that  the  South  Carolina  dec- 
laration of  causes  for  secession  in  1860  included  Illinois, 
Indiana,  Iowa,  and  New  Hampshire  with  the  ten  States 
which  had  passed  liberty  laws,  in  the  charge  of  having 
violated  their  constitutional  obligation  to  deliver  fugitive 
slaves. 

•  ••  »«• 

The  Fugitive-Slave  law  and  the  Personal-Liberty  laws 
together  show  plainly  that  the  compromise  of  1850'  was 
far  worse  than  labor  lost.  It  gave  the  South  a  law  to  which 
it  had  no  title;  even  Rhett,  in  the  South  Carolina  seces- 
sion convention,  declared  that  he  had  never  considered 
the  Fugitive-Slave  law  constitutional.  It  thus  provoked 
the  passage  of  the  Personal-Liberty  laws  in  the  North. 
Each  section,  ignoring  the  other's  complaints,  exhausted 
its  own  patience  in  calling  for  a  redress  which  neither 
was  willing  to  accord  first. 

1  See  Compromises. 


The  Fugitive  Slave 

It  is  not  meant  to  be  understood  that  secession  would 
never  have  occurred  without  the  aid  of  the  Fugitive- 
Slave  law  and  its  countervailing  statutes ;  only  that  seces- 
sion would  have  had  to  search  much  more  diligently  for 
an  excuse  without  them.  Throughout  the  whole  declara- 
tion of  South  Carolina  in  1860  there  is  hardly  an  allegation 
which,  in  any  point  of  view,  deserves  respectful  considera- 
tion, with  this  single  exception  of  the  Personal-Liberty 
laws ;  and  these  were  the  unconstitutional  results  of  the 
unconstitutional  Fugitive-Slave  law. 

The  objection  to  the  constitutionality  of  the  Fugitive- 
Slave  law  is,  in  brief,  that  the  rendition  of  fugitive  slaves, 
as  well  as  of  fugitives  from  justice,  was  an  obligation 
imposed  by  the  Constitution  upon  the  States;  and  that 
the  Federal  Government,  which  has  never  attempted  to 
give  the  law  in  the  latter  case,  had  no  more  right  to  do 
so  in  the  former.1 

This  opinion,  however,  has  against  it  the  unanimous 
opinion  of  the  Supreme  Court  in  the  case  of  Ableman  vs. 
Booth,  cited  below.  But  there  is  absolutely  no  legal 
excuse  for  the  Personal-Liberty  laws.  If  the  rendition  of 
fugitive  slaves  was  a  Federal  obligation,  the  Personal- 
Liberty  laws  were  in  flat  disobedience  to  law ;  if  the  obli- 
gation was  upon  the  States,  they  were  a  gross  breach  of 
good  faith,  for  they  were  intended,  and  operated,  to 
prevent  rendition ;  and  in  either  case  they  were  in  viola- 
tion of  the  Constitution,  which  the  State  legislators 
themselves  were  sworn  to  support.  The  dilemma  is  so 
inevitable  that  only  the  pressure  of  an  intense  and  natural 
horror  of  surrendering  to  slavery  a  man  who  had  escaped 
from  it,  or  who  had  never  been  subject  to  it,  can  palliate 
the  passage  of  the  laws  in  question.  Plainly,  the  people, 
in  adopting  the  fugitive-slave  clause  of  the  Constitution, 
had  assumed  an  obligation  which  it  was  not  possible  to 
fulfil. 

1  See  Fugitive-Slave  Laws. 


138  The  Slavery  Controversy 

The  writer's  own  belief,  that  the  obligation  of  rendition 
was  upon  the  States  alone,  has  prevented  him  from  class- 
ing the  Personal-Liberty  laws  under  nullification.  If, 
however,  the  obligation  was  really  Federal,  they  were 
certainly  nullifications,  though  not  to  the  same  degree  as 
that  of  South  Carolina;  for  the  latter  absolutely  pro- 
hibited the  execution  of  the  tariff  act,  while  the  former 
only  impeded  the  rendition  of  fugitive  slaves.  The 
principle,  however,  is  the  same.1 

It  is  worthy  of  notice,  however,  that  when  the  Supreme 
Court,  in  the  case  of  Ableman  vs.  Booth,  overrode  the 
Wisconsin  Personal-Liberty  law,  the  Wisconsin  Legis- 
lature passed  a  series  of  resolutions,  March  19,  1859,  re- 
affirming the  Kentucky  Resolutions  of  1799,"  but  making 
them  read  "that  a  positive  defiance"  (instead  of  a  nullifi- 
cation) "is  the  rightful  remedy." 

THE  OSTEND  MANIFESTO. — The  filibustering  expedi- 
tions against  Cuba  occasioned  anxiety  in  Europe  as  to 
the  possible  future  action  of  the  United  States  Govern- 
ment in  concealed  or  open  favor  of  such  expeditions.  In 
1852  Great  Britain  and  France  jointly  proposed  to  the 
United  States  a  tripartite  convention,  by  which  the  three 
powers  should  disclaim  all  intention  to  obtain  possession 
of  Cuba,  and  should  discountenance  such  an  attempt  by 
any  power.  December  I,  1852,  the  Secretary  of  State, 
Everett,  refused  to  do  so,  while  he  declared  that  the 
United  States  would  never  question  Spain's  title  to  the 
island.  Everett's  letter  has  been  severely  criticised,  but 
it  seems  justifiable  as  a  refusal  to  voluntarily  and  need- 
lessly restrict  future  administrations. 

August  1 6,  1854,  President  Pierce  directed  the  Amer- 
ican ministers  to  Great  Britain,  France,  and  Spain,  James 
Buchanan,  John  Y.  Mason,  and  Pierre  Soul£,  to  meet  in 
some  convenient  city  and  discuss  the  Cuban  question. 
They  met  at  Ostend,  October  9th,  and  afterward  at  Aix 

1  See  Nullification.  8  See  Kentucky  Resolutions. 


The  Fugitive  Slave  139 

la  Chapelle,  and  drew  up  the  dispatch  to  their  government 
which  is  commonly  known  as  the"Ostend  Manifesto." 
It  declared,  in  brief,  that  the  sale  of  Cuba  would  be  as 
advantageous  and  honorable  to  Spain  as  its  purchase 
would  be  to  the  United  States;  but  that,  if  Spain  should 
obstinately  refuse  to  sell  it,  self-preservation  would  make 
it  incumbent  upon  the  United  States  to  "wrest  it  from 
her,"  and  prevent  it  from  being  Africanized  into  a  second 
St.  Domingo. 

The  Ostend  Manifesto  was  denounced  in  the  Republi- 
can platform  of  1856  as  "the  highwayman's  plea  that 
might  makes  right";  and  was  not  openly  defended  by 
the  Democratic  platform  of  1856  or  1860,  except  that  the 
latter  declared  in  favor  of  the  acquisition  of  Cuba  by 
honorable  and  just  means,  at  the  earliest  practicable  mo- 
ment. See  Greeley's  American  Conflict;  Rhodes's  His- 
tory of  the  United  States;  Schouler's  Hist,  of  U.  S.; 
Cluskey's  Political  Text-Book ;  Wilson's  Rise  and  Fall 
of  the  Slave  Power ;  Cairnes's  Slave  Power ;  American 
History  Leaflets,  No.  2. 

On  the  Fugitive  Slave  Law  see  4  Elliot's  Debates,  286; 

1  Benton's  Debates  of  Congress,  384,  417;  I  von  Hoist's 
United  States,  310;  Prigg  vs.  Pennsylvania,  16  Pet.,  539; 
6  Benton's  Debates  of  Congress,  43,  107,  177;  the  act  of 
February  12,  1793,  is  in  I  Stat.  at  Large,  302.     See  16 
Benton's  Debates  of  Congress,   593 ;    2  Benton's   Thirty 
Years'  View,  773;   5  Stryker's  American  Register,   547, 
550;    Buchanan  s  Administration,    16;    Tyler's   Life  of 
Taney,  282,   392;   Ableman  vs.   Booth,  21   How.,    506; 

2  Wilson's  Rise  and  Fall  of  the  Slave  Power,  291-337,  435  ; 
Schuckers's  Life  of  Chase,  123,  171 ;  2  Webster's  Works, 
558,  and  5:354;  Butler's  speech  in  the  Senate  January 
24,  1850;  McPherson's  History  of  the  Rebellion,  p.  237; 
Moses  Stuart's  Conscience  and  the   Constitution;  Still's 
Underground  Railroad,  348;  Stevens  s  History  of  Anthony 
Burns;    I   Greeley's   American    Conflict,  210;  2  A.   H. 


The  Slavery  Controversy 

Stephens 's  War  Between  the  States,  674  (in  the  Declara- 
tion of  South  Carolina);  Hamilton's  Memoir  of  Rant  out, 
729;  authorities  under  articles  above  referred  to;  the 
Fugitive-Slave  law  is  in  9  Stat.  at  Large,  462 ;  the  act  of 
June  28,  1864,  is  in  13  Stat.  at  Large  (38th  Congress), 
410.  See  also  Sumner's  speech,  August  26,  1852;  Sum- 
ner's  Works,  for  Reply  to  his  Assailants,  January  28, 
1854;  Storey's  Sumner ;  Reminiscences  of  Levi  Coffin; 
Siebert's  Underground  Railroad ;  Rhodes's  U.  S.  His- 
tory;  Burgess's  Middle  Period. 

On  Personal  Liberty  Laws  see  Massachusetts  Revised 
Statutes  (1860),  c.  125,  §  20;  2  Wilson's  Rise  and  Fall  of 
the  Slave  Power,  57,  639;  Joel  Parker's  Personal  Liberty 
Laws  (1861) ;  B.  R.  Curtis's  Works,  328,  345;  2  ib.t  69; 
Tyler's  Life  of  Taney,  398;  Appleton's  Annual  Cyclopce- 
dia  (1861),  575;  21  How.,  506  (Ableman  vs.  Booth);  2 
Webster's  Works,  577;  Schuckers's  Life  of  Chase,  178; 
Schouler's  Hist,  of  U.  S.,  vol.  iv.,  pp.  428,  429.  Colloquy 
between  Toombs  and  Collamer  in  U.  S.  Senate,  Dec., 
i86o-Jan.,  1861. 


CHAPTER  VII 

THE    KANSAS-NEBRASKA   BILL:     POPULAR  SOVEREIGNTY 
AND  THE  STRUGGLE  FOR  KANSAS 

THE  KANSAS-NEBRASKA  BILL  was  the  act  of  Congress" 
by  which  the  Territories  of  Kansas  and  Nebraska 
were  organized  in  1854.    Its  political  importance  consisted 
wholly  in  its  repeal  of  the  Missouri  Compromise.  ^. 

Judged  by  its  results  it  was  one  of  the  most  important 
acts  in  the  legislative  history  of  the  United  States.  It 
precipitated  the  final  phases  of  the  slavery  struggle  which 
resulted  in  the  Civil  War.  It  led  to  a  reorganization  of 
political  parties.  "It  set  slavery  and  freedom  face  to 
face  and  bade  them  grapple  "  (Sumner). 

Before  the  introduction  of  the  bill  it  did  not  seem  pos- 
sible for  any  further  question  to  arise  as  to  slavery  in  the 
United  States.  In  the  several  States  slavery  was  regu- 
lated by  State  law;  in  the  Louisiana  Purchase  both  sec- 
tions had  in  1820  united  to  abolish  slavery  in  the  portion 
north  of  latitude  36°  30',  ignoring  the  portion  south  of  it ; 
all  the  southern  portion,  outside  of  the  Indian  Territory, 
was  covered  soon  afterward  by  the  slave  State  of  Arkan- 
sas; and  in  the  territory  afterward  acquired  from  Mexico 
both  sections  had  united  in  1850  in  an  agreement  to  ignore 
the  existence  of  slavery  until  it  could  be  regulated  by  the 
laws  of  the  States  which  should  be  formed  therefrom  in 
future.  Every  inch  of  the  United  States  seemed  to  be 
thus  covered  by  some  compromise  or  other.1 

1  Sec  Compromises. 
141 


The  Slavery  Controversy 

The  slavery  question  was  in  this  condition  of  equili- 
brium when  a  bill  was  passed  by  the  House,  February  10, 
1853,  to  organize  the  Territory  of  Nebraska,  covering, 
also,  the  modern  State  of  Kansas.  It  lay  wholly  within 
that  portion  of  the  Louisiana  Purchase  whose  freedom 
had  been  guaranteed  by  the  Missouri  Compromise,  and 
the  bill  therefore  said  nothing  about  slavery,  its  support- 
ers taking  it  for  granted  that  the  Territory  was  already 
free.  In  the  Senate  it  was  laid  on  the  table,  March  3d, 
the  affirmative  including  every  Southern  Senator  except 
those  from  Missouri;  but  their  opposition  to  the  bill 
came  entirely  from  an  undefined  repugnance  to  the  practi- 
cal operations  of  the  Missouri  Compromise,  not  from  any 
idea  that  that  compromise  was  no  longer  in  force.  If  it 
had  been  repealed  by  the  compromise  of  1850,  those  most 
interested  in  the  repeal  do  not  seem  to  have  yet  dis- 
covered it  in  1853.' 

During  the  summer  of  1853,  following  the  adjournment 
of  Congress,  the  discussion  of  the  new  phase,  which  the 
proposed  organization  of  Nebraska  at  once  brought  about 
in  the  slavery  question,  became  general  among  the  South- 
ern politicians.  The  Southern  people  do  not  seem  to 
have  taken  any  great  interest  in  the  matter,  for  it  was 
very  improbable  that  slave  labor  could  be  profitably  em- 
ployed in  Nebraska,  even  if  it  were  allowed.  The  ques- 
tion was  wholly  political.  The  territory  in  question  had 
been  worthless  ever  since  it  was  bargained  away  to  secure 
the  admission  of  Missouri  as  a  Southern  and  slaveholding 
State ;  but  now  immigration  was  beginning  to  mark  out 
the  boundaries  of  present  Territories  and  potential  States, 

1  Opposition  to  this  first  Nebraska  bill  in  the  Senate  arose  from  matters 
touching  Indian  relations,  their  land  titles,  and  their  relation  to  the  Texan 
frontier.  See  speeches  of  Bell  and  Houston  in  the  Senate,  March,  1853. 
That  the  status  of  slavery  in  the  Territory  was  not  considered  as  unsettled 
or  uncertain  is  made  clear  from  the  speeches  of  Giddings  and  Atchison. 
See  Burgess's  Middle  Period,  Hay  and  Nicolay's  Life  of  Lincoln,  Rhodes's 
U.  S.  History, 


The  Kansas-Nebraska  Bill 

which  would,  in  the  near  future,  make  the  South  a  minor- 
ity in  the  Senate,  as  it  had  always  been  in  the  House,  and 
perhaps  place  it  at  the  mercy  of  a  united  North  and 
Northwest. 

To  prevent  this  result  it  was  of  importance  to  Southern 
politicians,  I,  that,  if  the  Missouri  Compromise  was  to 
endure,  Nebraska  should  remain  unorganized,  in  order  to 
check  immigration  and  prevent  the  rapid  formation  of 
another  Northern  State;  2,  that,  if  the  Missouri  Com- 
promise could  be  voided,  Nebraska  should  at  least  be 
open  to  slavery,  for  the  same  purpose  as  above,  since  it 
was  agreed  on  all  hands  that  free  immigration  instinc- 
tively avoided  any  contact  with  slave  labor;  and  3,  that, 
if  slave  labor  could  possibly  be  made  profitable  in  Ne- 
braska, the  Territory  should  become  a  slave  State,  con- 
trolled by  a  class  of  slave  owners  in  full  sympathy  with 
the  ruling  class  of  the  Southern  States.  The  last  con- 
tingency was  generally  recognized  as  highly  improbable ; 
one  of  the  first  two  was  the  direct  objective  point. 

When  Congress  met  in  December,  1853,  the  Southern 
programme,  as  above  stated,  had  been  pretty  accurately 
marked  out.     It  was  not  a  difficult  task  to  secure  the 
support  of  Northern  Democrats  for  it,  because  the  latter 
had  for  five  years  been  advocating  the  right  of  the  people 
of  New  Mexico  to  decide  the  status  of  slavery  in  that 
Territory.1     The  only  step  backward  that  was  necessary  \ 
was  to  accept  the  application  of  the  doctrine  to  all  the 
Territories,  whether  south  or  north  of  latitude  36°  30'.    \ 
The  excuse  for  this  backward  step  was  thus  stated  by   ' 
Douglas  in  his  report  of  January  4,  1854:  "The  Nebraska 
country  occupies  the  same  relative  position  to  the  slavery 
question  as  did  New  Mexico  and  Utah  when  those  Terri- 
tories were  organized." 

A  wrong  premise :  for  the  difficulty  in  the  case  of  New 
Mexico  and  Utah  had  arisen  entirely  from  the  fact  that 

1  See  Popular  Sovereignty. 


144  The  Slavery  Controversy 

the  status  of  slavery  in  them  was  unsettled,  and  could 
not  be  settled  without  a  struggle;  while  in  the  case  of 
Nebraska  the  struggle  was  rightfully  over,  and  the  status 
of  slavery  fixed. 

Congressional  action  was  directed,  in  the  former  case, 
toward  an  amicable  adjustment  of  the  dispute,  and,  in 
the  latter  case,  toward  a  needless  reopening  of  the  dis- 
pute ;  and  yet  the  assumed  parallelism  of  the  two  cases 
was  absolutely  the  only  justification  ever  offered  by 
Douglas  and  the  Douglas  Democracy  of  the  North  for 
their  introduction  and  support  of  the  Kansas-Nebraska 
bill.  They  seem  to  have  been  forced  into  it  by  their 
constitutional  arguments  in  support  of  "squatter  sove- 
reignty"; after  arguing  that  Congress  had  no  constitu- 
tional power  to  prohibit  slavery  in  New  Mexico  in  1850, 
it  seemed  difficult  for  them,  without  stultifying  them- 
selves, to  argue  in  favor  of  the  power  of  Congress  in  1820 
to  prohibit  slavery  in  Nebraska.  They  seem  to  have  for- 
gotten that  the  compromise  of  1850  was  confessedly  not 
based  upon  constitutional  grounds  at  all,  but  was  a  purely 
political  decision,  based  upon  expediency ;  that  the  con- 
stitutional objections  to  the  power  of  Congress  to  prohibit 
slavery  in  a  Territory  applied  equally  to  the  power  of 
Congress  to  prohibit  a  territorial  legislature  from  legislat- 
ing for  or  against  slavery,  and  so  struck  at  the  very  root 
of  the  compromise  of  1850  itself ;  and  that  the  expediency 
which  counselled  them  to  refrain  from  meddling  with  the 
slavery  question  in  New  Mexico  and  Utah  as  imperatively 
counselled  them  to  refrain  from  disturbing  the  settlement 
of  the  slavery  question  in  Nebraska. 

December  15,  1853,  in  the  Senate,  A.  C.  Dodge,  of 
Iowa,  offered  a  bill  to  organize  the  Territory  of  Nebraska, 
but  his  bill,  like  the  one  of  the  preceding  session,  made 
no  reference  to  slavery.  January  4,  1854,  it  was  reported 
with  amendments  by  Douglas,  chairman  of  the  Commit- 
tee on  Territories. 


The  Kansas-Nebraska  Bill  145 

The  report  endeavored  to  make  out  a  parallel  between 
New  Mexico  and  Nebraska  by  comparing  the  Mexican 
abolition  of  slavery  in  the  former  case  with  the  act  of  1820 
in  the  latter  case;  it  remarked  that  in  either  case  the 
validity  of  the  abolition  of  slavery  was  questioned  by 
many,  and  that  any  discussion  of  the  question  would  re- 
new the  excitement  of  1850;  and  it  recommended,  though 
not  directly,  that  the  Senate  should  organize  the  new 
Territory  without  "either  affirming  or  repealing  the  8th 
section  of  the  Missouri  act,  or  [passing]  any  act  declara- 
tory of  the  meaning  of  the  Constitution  in  respect  to  the 
legal  points  in  dispute."  But  the  report  stated  the  basis 
of  the  compromise  of  1850  as  follows:  "That  all  ques- 
tions pertaining  to  slavery  in  the  Territories,  and  in  the 
new  States  to  be  formed  therefrom,  are  to  be  left  to  the  de- 
cision of  the  people  residing  therein,  by  their  appropriate 
representatives,  to  be  chosen  by  them  for  that  purpose." 

This  was,  in  the  first  place,  incorrect,  since  the  New 
Mexico  and  Utah  acts  left  no  such  power  to  the  territorial 
legislature,1  and,  in  the  second  place,  not  pertinent,  since 
it  was  an  attempt  to  expand  an  act  of  Congress,  passed 
for  a  particular  purpose,  into  a  great  constitutional  rule 
which  was  to  bind  subsequent  Congresses.  January  i6th, 
Dixon,  of  Kentucky,  gave  notice  of  an  amendment  abol- 
ishing the  Missouri  Compromise  in  the  case  of  Nebraska. 

This  was  the  first  open  signal  of  danger  to  the  Missouri 
Compromise ;  and  on  the  following  day  Sumner,  of  Mas- 
sachusetts, gave  notice  of  an  amendment  to  the  bill, 
providing  that  nothing  contained  in  it  should  abrogate 
or  contravene  that  settlement  of  the  slavery  question. 
Douglas  at  once  had  the  bill  recommitted,  and,  January 
23d,  he  reported,  in  its  final  shape,  the  Kansas-Nebraska 
bill,  which,  in  its  ultimate  and  unexpected  consequences, 
was  one  of  the  most  far-reaching  legislative  acts  in  Ameri- 
can history. 

1  See  Popular  Sovereignty. 


VOL.  II. 10. 


146  The  Slavery  Controversy 

The  bill  divided  the  Territory  from  latitude  37°  to  lati- 
tude 43°  30'  into  two  Territories,  the  southern  to  be 
called  Kansas  and  the  northern  Nebraska;  the  territory 
between  latitude  36°  30'  and  37°  was  now  left  to  the 
Indians.  In  the  organization  of  both  these  Territories  it 
was  declared  to  be  the  purpose  of  the  act  to  carry  out 
the  following  three  "propositions  and  principles,  estab- 
lished by  the  compromise  measures  of  1850" :  i,  that  all 
questions  as  to  slavery  in  the  Territories,  or  the  States  to 
be  formed  from  them,  were  to  be  left  to  the  representa- 
tives of  the  people  residing  therein ;  2,  that  cases  involv- 
ing title  to  slaves,  or  personal  freedom,  might  be  appealed 
from  the  local  tribunals  to  the  Supreme  Court;  and  3, 
that  the  Fugitive-Slave  law  should  apply  to  the  Terri- 
tories. The  section  which  extended  the  Constitution 
and  laws  of  the  United  States  over  the  Territories  had 
the  following  proviso : 

' '  except  the  eighth  section  of  the  act  preparatory  to  the  ad- 
mission of  Missouri  into  the  Union,  approved  March  6,  1820, 
which,  being  inconsistent  with  the  principles  of  non-interven- 
tion by  Congress  with  slavery  in  the  States  and  Territories,  as 
recognized  by  the  legislation  of  1850,  commonly  called  the 
compromise  measures,  is  hereby  declared  inoperative  and  void ; 
it  being  the  true  intent  and  meaning  of  this  act  not  to  legislate 
slavery  into  any  Territory  or  State,  nor  to  exclude  it  therefrom, 
but  to  leave  the  people  thereof  perfectly  free  to  form  and  regu- 
late their  domestic  institutions  in  their  own  way,  subject  only 
to  the  Constitution  of  the  United  States. ' ' 

With  the  exception  of  these  two  novel  features,  the  bill 
was  the  usual  formal  act  for  the  organization  of  a  Terri- 
tory. An  amendment  offered  by  Chase,  of  Ohio,  allow- 
ing the  people  of  the  Territory  to  prohibit  the  existence 
of  slavery  therein,  if  they  saw  fit,  was  voted  down,  36  to 
10.  It  is  difficult  to  see  any  reason  for  the  affirmative 
vote,  since  the  Chase  amendment  was  strictly  in  the  line 
of  "popular  sovereignty,"  but  it  was  probably  due  in 


The  Kansas-Nebraska  Bill  147 

part  to  a  general  distrust  of  any  amendment  coming  from 
the  anti-slavery  element,  and  in  part  to  the  idea  that  the 
closing  words  above  given,  "subject  only  to  the  Constitu- 
tion of  the  United  States,"  excluded  the  Chase  amend- 
ment and  made  popular  sovereignty  unilateral  in  the 
Territories,  with  authority  to  permit  slavery,  but  not  to 
prohibit  it. 

March  3,  1854,  the  bill  passed  the  Senate  by  a  vote  of 
37  to  14.  In  the  affirmative  were  fourteen  Northern 
Democrats,  and  twenty-three  Southern  Democrats  and 
Whigs ;  in  the  negative  were  eight  Northern  anti-slavery 
Senators,  free-soilers,  or  "anti-Nebraska  men,"1  Bell, 
Southern  Whig,  Houston,  Southern  Democrat,  and 
Hamlin,  of  Maine,  James,  of  Rhode  Island,  and  Dodge 
and  Walker,  of  Wisconsin,  Northern  Democrats. 

The  bill  was  not  taken  up  in  the  House  until  May  8th, 
and  was  passed,  May  24th,  by  a  vote  of  113  to  100.  The 
affirmative  vote  included  forty-four  Northern  Democrats, 
fifty-seven  Southern  Democrats,  and  twelve  Southern 
Whigs ;  the  negative  vote  included  forty-four  Northern 
Democrats,  two  Southern  Democrats,  forty-four  Northern 
Whigs,  seven  Southern  Whigs,  and  three  Free  Soilers. 
May  3Oth,  the  Kansas-Nebraska  bill  was  approved  by 
the  President,  and  became  law. 

The  effects  of  the  bill  upon  the  parties  of  the  time  are 
elsewhere  referred  to."  They  may  be  summarized  as  fol- 
lows: i,  it  destroyed  the  Whig  party,  the  great  mass  of 
whose  voters  went  over,  in  the  South  to  the  Democratic, 
and  in  the  North  to  the  new  Republican  party;  2,  it 
made  the  Democratic  party  almost  entirely  sectional,  for 
the  loss  of  its  strong  anti-slavery  element  in  the  North 
reduced  it  in  the  course  of  the  next  few  years  to  a  hope- 
less minority  there;  3,  it  crystallized  all  the  Northern 

1  See  Republican  Party. 

*  See  Democratic  Party,  V.  ;  Whig  Party,  III.  ;  Republican  Party,  I. ; 
American  Party. 


148  The  Slavery  Controversy 

elements  opposed  to  slavery  into  another  sectional  party, 
soon  to  take  the  name  of  Republican ;  and  4,  it  compelled 
all  other  elements,  after  a  hopeless  effort  to  form  a  new 
party  on  a  new  issue,  to  join  one  or  the  other  sectional 
party.  Its  effects  on  the  people  of  the  two  sections  were 
still  more  unfortunate :  in  the  North,  it  laid  the  foundation 
for  the  belief,  which  the  Dred  Scott  decision  was  soon  to 
confirm,  that  the  whole  policy  of  the  South  was  a  greedy, 
grasping  selfish  desire  for  the  extension  of  slavery;  in 
the  South,  by  the  grant  of  what  none  but  the  politicians 
had  hitherto  asked  or  expected,  the  abolition  of  the  Mis- 
souri Compromise,  it  prepared  the  people  for  the  belief 
that  the  subsequent  forced  settlement  of  Kansas  by  means 
of  emigrant  aid  societies  was  a  treacherous  evasion  by  the 
North  of  the  terms  of  the  Kansas-Nebraska  bill.  In  other 
words,  the  Kansas-Nebraska  bill,  and  still  more  the  Dred 
Scott  decision  which  followed  it,  placed  each  section  in 
1860,  to  its  own  thinking,  impregnably  upon  its  own 
peculiar  ground  of  aggrievement :  the  North  remembered 
only  the  violation  of  the  compromise  of  1820  by  the 
Kansas-Nebraska  bill,  taking  the  Dred  Scott  decision  as 
only  an  aggravation  of  the  original  offence ;  the  South, 
ignoring  the  compromise  of  1820  as  obsolete  by  mutual 
agreement,  complained  of  the  North's  refusal  to  carry 
out  fairly  the  Kansas-Nebraska  bill  and  the  Dred  Scott 
decision.  And  all  this  unfortunate  complication  was  due 
entirely  to  Stephen  A.  Douglas's  over-zealous  desire  to 
settle  still  more  firmly  and  securely  a  question,  which 
was  already  settled. 

On  the  other  hand,  it  is  but  fair  to  give  Douglas's 
grounds  for  his  action,  as  reported  by  Cutts  (cited  below). 
Having  shown  the  imperative  necessity  for  immediate 
organization  of  the  two  Territories,  he  proceeds  as  fol- 
lows (italics  as  in  original) : 

"  If  the  necessity  for  the  organization  of  the  territories  did 


The  Kansas-Nebraska  Bill  149 

in  fact  exist,  it  was  right  that  they  should  be  organized  upon 
sound  constitutional  principles;  and  if  the  compromise  measures 
of  1850  were  a  safe  rule  of  action  upon  that  subject,  as  the  coun- 
try in  the  presidential  election  and  both  of  the  political  parties 
in  their  national  conventions  in  1852  had  affirmed,  then  it  was 
the  duty  of  those  to  whom  the  power  had  been  intrusted  to 
frame  the  bills  in  accordance  with  those  principles. 

"  There  was  another  reason  which  had  its  due  weight  in  the 
repeal  of  the  Missouri  restriction.  The  jealousies  of  the  two 
great  sections  of  the  Union,  north  and  south,  had  been  fiercely 
excited  by  the  slavery  agitation.  The  Southern  States  would 
never  consent  to  the  opening  of  those  Territories  to  settlement, 
so  long  as  they  were  excluded  by  act  of  Congress  from  moving 
there  and  holding  their  slaves;  and  they  had  the  power  to 
prevent  the  opening  of  the  country  forever,  inasmuch  as  it 
had  been  forever  excluded  by  treaties  with  the  Indians,  which 
could  not  be  changed  or  repealed  except  by  a  two-thirds  vote 
in  the  Senate.  But  the  South  were  willing  to  censer*,  to  re- 
move the  Indian  restrictions,  provided  the  North  would  at  the 
same  time  remove  the  Missouri  restriction,  and  thus  throw  the 
country  open  to  settlement  on  equal  terms  by  the  people  of 
the  North  and  South,  and  leave  the  settlers  at  liberty  to  in- 
troduce or  exclude  slavery  as  they  should  think  proper." 

All  this  is  certainly  of  very  great  force,  but  only  as  a 
statement  of  the  problem  which  was  to  be  solved  mainly 
by  Douglas  and  the  Northern  Democracy,  and  not,  as 
Douglas  evidently  takes  it,  as  a  justification  of  the  par- 
ticular solution  which  was  adopted.1 

POPULAR  SOVEREIGNTY. — The  acquisition  of  territory 
from  Mexico  brought  with  it  a  most  troublesome  and 
dangerous  question,  the  status  of  slavery  therein.  Was 
the  new  Territory  to  be  entirely  free?  was  it  to  be  entirely 
slave?  was  it  to  be  equitably  divided?  or  was  Congress  to 
refrain  from  interfering  in  any  way,  and  allow  the  prob- 
lem to  gradually  eliminate  its  own  difficulties?  The  first 

1  See,  further,  Dred  Scott  Case,  Slavery,  Secession,  United  States. 


i5°  The  Slavery  Controversy 

^--" 

proposition,  the  basis  of  the  Free  Soil  and  Republican 
parties  successively,  is  elsewhere  treated  ' ;  the  third  had 
comparatively  few  advocates,  for  the  time  had  passed 
when  even  a  Missouri  Compromise  line  could  settle  the 
difficulty;  the  second  and  fourth  represent  the  two  op- 
posing influences  which,  after  twelve  years  of  widening, 
finally  split  the  Democratic  party  in  1860. 

The  second  proposition  above  referred  to  is  primarily 
untraceable,  but  its  rounded  and  ultimate  completion  is 
certainly  due  to  Calhoun.  The  argument  for  it  took  two 
directions,  which  may  be  briefly  stated  as  follows :  I.  The 
power  given  to  Congress  by  the  Constitution  (Article  IV., 
Section  3),  to  "dispose  of  and  make  all  needful  rules  and 
regulations  respecting  the  territory"  of  the  United  States, 
referred  only  to  the  territory  then  held  by  the  United 
States,  in  which  slavery  had  already  been  prohibited.11 

This  meaning  was  so  clear  at  the  time  that  a  separate 
section  was  necessary  to  empower  Congress  to  govern 
the  territory  thereafter  to  be  acquired  for  a  national 
capital.  Plainly,  then,  in  the  cases  of  Louisiana,  Florida, 
and  the  Mexican  annexations,  Congress  was  to  govern 
them,  not  by  virtue  of  this  territorial  section  of  the  Con- 
stitution, but  by  virtue  of  the  sovereign  power  by  which 
it  had  acquired  them.  But  Congress  was  itself  the 
creature  of  the  Constitution,  and  could  exercise  in  the 
Territories  no  powers  prohibited  to  it  by  the  Constitu- 
tion: it  could  not  erect  a  State  church  there;  or  take 
away  freedom  of  speech,  or  trial  by  jury;  or  allow  any 
one  to  be  deprived  of  property  without  due  process  of 
law.  If,  therefore,  it  found  slave  property  in  any  of  the 
Territories,  it  was  constitutionally  bound  to  legislate  for 
the  protection  of  this  species  of  property,  as  well  as  of  ; 
others. 

This  was  the  branch  of  argument  intended  for  the 
country  in  general.  Historically  it  is  very  strong,  as  may 

1  See  Wilmot  Proviso.  *  See  Ordinance  of  1787. 


V"**""* 

The  Kansas-Nebraska  Bill  (i|t> 

be  better  seen  in  Taney's  opinion  in  the  Dred  Scott  case. 
Logically  it  is  almost  as  strong,  its  radically  weak  point 
being  in  the  definition  of  "property."  How  could  Con- 
gress be  said  to  "find  slave  property"  in  the  Territories? 
State  law  or  custom  might  create  a  property  in  man,  but 
this  could  cover  only  the  jurisdiction  of  the  State:  the 
State  law  or  custom  of  Georgia  could  no  more  justify 
property  in  slaves  in  a  Territory  than  in  the  sister  State 
of  New  York.  Slave  property  could  not  be  justified  by 
territorial  law,  for  the  Territories  were  under  the  sovereign 
jurisdiction  of  the  United  States;  nor  by  that  consensus 
of  recognition  by  all  men  which  justifies  the  holding  of 
other  animate  objects  as  property.  It  could  hold  up 
absolutely  no  other  shield  than  State  law.  Was  Con- 
gress to  protect  every  man  in  the  Territories  in  the 
enjoyment  of  whatever  he  might  see  fit  to  claim  as  his 
property — air,  sunlight,  black  men,  or  even  other  white 
men? 

But  the  whole  argument  is  no  stronger  than  its  weakest 
part,  and  must  stand  or  fall  with  that.  2.  As  the  Con- 
stitution was  a  compact  between  separate  and  sovereign 
States,  Congress,  as  the  joint  agent  and  representative  of 
the  States,  had  no  right  to  so  legislate  against  slave  prop- 
erty in  the  Territories  as  to  prevent  citizens  of  slave  States 
from  emigrating  thither,  since  that  would  be  a  discrimina- 
tion against  such  States,  and  would  deprive  them  of  their 
full  and  equal  right  in  the  Territories.  This  branch  is 
elsewhere  considered.1  In  this  case  it  was  addressed 
more  directly  to  the  slave  States  than  to  the  country  at 
large,  and  it  furnishes  the  connecting  link  between  the 
theory  of  State  sovereignty  and  its  practical  enforcement 
by  secession,  when  Calhoun's  hypothetical  casus  belli  had 
occurred. 

In  this  point  of  view,  Calhoun's  resolutions  of  February 
19,  1847,  whose  language  has  been  used  in  the  statement 

1  See  State  Sovereignty. 


The  Slavery  Controversy 

above,  were  the  ultimatum  on  which  the  Southern  States 
originally  declared  war  in  1860. 

The  first  enunciation  of  the  fourth  proposition  is  gen- 
erally found  in  the  Nicholson  letter  of  Cass,  December 
24,  1847.  In  this  Cass  asserts  that  the  principle  of  the 
Wilmot  Proviso  "should  be  kept  out  of  the  national  legis- 
lature, and  left  to  the  people  of  the  confederacy  in  their 
respective  local  governments"  ;  and  that,  as  to  the  Terri- 
tories themselves,  the  people  inhabiting  them  should  be 
left ' '  to  regulate  their  internal  concerns  in  their  own  way. 

This  idea  was  the  essence  of  "popular  sovereignty." 
Its  advocates  generally  accepted  the  territorial  section  of 
the  Constitution,  above  referred  to,  as  applicable,  not 
only  to  the  territory  possessed  by  the  United  States  in 
1788,  but  prospectively  to  any  which  might  be  acquired 
thereafter.  They  therefore  held  that  Congress  might 
make  any  "rules  and  regulations"  it  might  deem  proper 
for  the  Territories,  including  the  Mexican  acquisitions; 
but  that,  in  making  these  rules  and  regulations,  it  was 
wiser  and  better  for  Congress  to  allow  the  "inchoate 
^State"  to  shape  its  own  destiny  at  its  own  will. 

Properly,  it  will  be  seen,  there  was  nothing  in  the 
dogma  which  could  constitutionally  prohibit  Congress 
from  making  rules  for  or  against  slavery  in  the  Territories, 
if  it  should  so  determine,  though  gradually  Douglas  and 
some  of  its  more  enthusiastic  advocates  grew  into  the  be- 
lief that  popular  sovereignty  was  the  constitutional  right 
of  the  people  of  the  Territories,  which  Congress  could 
not  abridge.  Still,  it  should  have  been  plain  that,  if  a 
Democratic  Congress  might  make  a  "regulation"  em- 
powering the  people  of  the  Territories  to  control  slavery 
therein,  a  Congress  of  opposite  views  might  with  equal 
justice  make  a  "regulation"  of  its  own,  abolishing  slavery 
therein.  This  point,  however,  never  became  plain  to  the 
South  until  the  new  Republican  party  secured  control  of 
the  House  of  Representatives  in  1855-7. 


The  Kansas-Nebraska  Bill  153 

After  that  time  the  whole  South  came  to  repudiate 
popular  sovereignty  and  the  territorial  section  of  the 
Constitution,  and  rested  on  the  Calhoun  doctrine  that 
Congress  and  the  immigrant  both  entered  the  Territory 
with  all  the  limitations  of  the  Constitution  upon  them, 
including  its  provisions  for  the  protection  of  slave  prop- 
erty as  well  as  property  of  other  kinds. 

At  its  first  declaration,  however,  the  idea  proved  to  be 
a  very  taking  one,  South  and  North,  for  it  promised  to 
relieve  the  States  from  any  responsibility  for  or  considera- 
tion of  the  question  of  slavery  in  the  Territories.  This 
was  to  be  decided  by  the  territorial  legislature,  as  repre- 
senting the  people,  and  by  the  popular  convention,  upon 
the  final  formation  of  a  State  constitution.  The  Demo- 
cratic platform  of  1848  did  not  directly  refer  to  or  indorse 
it,  but  its  highly  colored  reference  to  the  French  Revolu- 
tion of  that  year,  and  to  "the  recent  development  of  this 
grand  political  truth  of  the  sovereignty  of  the  people  and 
their  capacity  and  power  of  self-government,"  was  at 
least  suggestive  of  the  Cass  doctrine  of  popular  sover- 
eignty in  the  Territories. 

The  suggestion  was  made  still  plainer  by  the  conven- 
tion's action  in  rejecting,  by  a  vote  of  216  to  36,  a  reso- 
lution offered  by  Yancey,  of  Alabama,  recognizing  "the 
doctrine  of  non-interference  with  the  rights  of  property 
of  any  portion  of  the  people  of  this  Confederacy,  be  it  in 
the  States  or  Territories,  by  any  other  than  the  parties 
interested  in  them  [i.  e.,  in  such  rights]"  ;  the  Democratic 
convention  was  not  willing,  therefore,  to  sustain  the  right 
of  any  slaveholder  to  transfer  his  slave  property  into  a 
Territory  against  the  will  of  its  people. 

The  sudden  growth  of  population  in  California  in 
1848-50  gave  Calhoun  an  opportunity  of  fastening  a 
nickname  upon  the  doctrine  which  he  opposed.  No  ter- 
ritorial government  had  been  formed  in  California  when 
it  applied  for  admission  as  a  State.  Its  inhabitants,  said 


154  The  Slavery  Controversy 

Calhoun,  were  therefore  trespassers  on  the  public  domain, 
mere  squatters,  who  surely  had  no  right  on  any  theory  to 
regulate  their  own  government.  His  ridicule  only  made 
the  terms  "squatter  sovereignty"  and  "popular  sover- 
eignty" interchangeable,  though  the  former  properly 
applied  to  an  unorganized,  and  the  latter  to  an  organ- 
ized, Territory. 

The  original  discoverer  of  the  doctrine  of  popular  sover- 
eignty in  the  Territories  did  not  perfect  his  claim  by 
occupation,  and  Douglas  almost  immediately  became  its 
strongest  and  most  persistent  champion,  so  that  his  name 
is  most  entirely  identified  with  it.  Henceforward  the 
Douglas  doctrine  became  the  shibboleth  of  most  of  the 
Northern  Democrats,  as  a  medium  between  the  Wilmot 
Proviso  and  the  demand  of  many  of  the  Southern  Demo- 
crats for  active  congressional  protection  of  slavery  in  the 
Territories. 

It  is  significant,  however,  of  the  timorous  and  evasive 
statesmanship  of  1850,  that  it  is  exceedingly  difficult  to 
say  whether  popular  sovereignty  was  a  feature  in  the 
compromise  of  that  year.1 

Southern  Democrats  asserted  that  it  was  not,  and  their 
claim  is  supported  by  the  provisions  that  the  legislatures 
of  Utah  and  New  Mexico  (the  only  Territories  organized 
by  the  compromise)  should  have  power  over  "all  rightful 
subjects  of  legislation  consistent  with  the  Constitution  of 
the  United  States,"  and  that  its  laws  should  be  sub- 
mitted to  Congress,  and,  if  disapproved,  should  be  null 
and  of  no  effect.  Douglas  asserted  that  popular  sover- 
eignty was  the  basis  of  the  bill,  and  the  course  of  pro- 
ceedings on  it  in  the  Senate  seems  to  confirm  his  assertion. 
He  reported  the  bill  in  the  Senate,  March  25th,  the 
powers  of  the  Legislature  being  as  above  stated.  The 
Committee  of  Thirteen  reported  the  same  bill,  May  8th, 
adding  the  proviso  "with  the  exception  of  African  slaves." 

1  See  Compromises. 


The  Kansas- Nebraska  Bill 

Amendments  were  offered  by  Jefferson  Davis,  of  Missis- 
sippi, to  empower  the  territorial  legislature  to  protect, 
but  not  to  attack,  slavery,  and  by  Chase,  of  Ohio,  of 
exactly  the  opposite  purport. 

Both  were  rejected ;  a  motion  of  Douglas,  through 
another  Senator,  to  strike  out  the  committee's  exception 
of  slavery  from  the  powers  of  the  Legislature,  was  carried 
by  a  vote  of  33  to  19;  and  the  bill  passed  as  originally 
framed  by  Douglas. 

Even  with  this  explanation,  the  best  that  can  be  said 
of  the  whole  arrangement  is,  that  it  was  a  provoking  ver- 
bal juggle,  meaning  anything  but  what  it  appeared  to 
mean  on  its  face,  and  best  calculated  for  citation  as  a  pre- 
cedent in  two  opposite  senses,  for  an  increasingly  bitter 
wrangle  over  its  meaning,  and  for  the  final  disruption  of 
the  party  which  had  passed  it.1 

In  1854  the  Kansas-Nebraska  bill  (see  that  title)  again 
purported  to  enforce  the  popular-sovereignty  idea  in  the 
new  Territories,  although  slavery  had  been  prohibited  in 
both  of  them  by  the  Missouri  Compromise  of  1820.  It 
will  be  noticed  that  its  language  is  simple  and  direct  until 
the  point  is  reached  where  "popular  sovereignty"  was  to 
be  defined ;  then  it  becomes  circumlocutory.  The  people 
were  to  "form  and  regulate  their  domestic  institutions  in 
their  own  way"  ;  did  that  mean  that  they  were  at  liberty 
either  to  allow  or  to  prohibit  slavery?  "Popular  sover- 
eignty" and  common  sense  said,  Yes;  the  very  Senate 
that  passed  the  bill  said,  No;  Chase's  amendment, 
"under  which  the  people  of  the  Territory,  through  their 
appropriate  representatives,  may,  if  they  see  fit,  prohibit 
the  existence  of  slavery  therein,"  was  rejected,  March 
2d,  by  a  vote  of  36  to  10. 

What  other  meaning  than  that  of  the  Chase  amendment 
could  be  given  to  the  bill  it  is  impossible  to  see,  and, 
unless  the  vote  above  mentioned  was  only  significant  of  a 

1  See  Democratic  Party. 


The  Slavery  Controversy 

general  dislike  of  Chase,  the  popular  sovereignty  part  of 
the  Kansas-Nebraska  bill  must  be  set  down  as  another 
verbal  juggle,  intended  to  be  read  in  different  ways,  one 
way  in  the  North,  another  way  in  the  South. 

In  the  meantime  Calhoun's  original  theory  had  been 
growing  in  favor  at  the  South.  There  the  leaders  were 
rapidly  growing  more  dissatisfied  with  "non-intervention 
by  Congress,"  with  the  idea  that  Congress  was  of  itself 
to  do  nothing  for  or  against  slavery  in  the  Territories, 
but  was  to  delegate  to  the  people  of  the  Territories  the 
powers  which  it  would  not  or  could  not  exercise  itself. 

A  convention  of  delegates  from  nine  Southern  States 
at  Nashville,  June  2,  1850,  had  declared  that  the  Federal 
Government  had  no  right  to  decide  what  should  be  held 
as  property  in  the  Territories;  that  the  slaveholding 
States  would  not  submit  to  any  restraints  upon  the 
removal  of  their  citizens  with  their  property  to  the  Terri- 
tories; but  that,  for  the  sake  of  peace,  they  would  con- 
sent to  the  equitable  division  of  the  Territories  by  the 
line  of  36  °3o'  to  the  Pacific.  Four  years  afterward  they 
assisted  in  carrying  through  the  extension  of  popu- 
lar sovereignty  to  all  the  Territories,  by  the  Kansas- 
Nebraska  bill,  partly  from  the  desire  to  gratify  the 
Northern  Democracy,  but  much  more  from  the  delusive 
hope  that  all  the  Territories  would  thus  be  opened  to 
slavery. 

Within  two  years  this  hope  had  vanished  forever.  It 
was  plain  that,  without  the  reopening  of  the  African 
slave  trade,  "popular  sovereignty"  in  the  Territories 
meant  their  inevitable  final  admission  as  free  States. 
From  the  moment  that  this  result  was  apparent,  there 
was  no  longer  any  hesitation  among  Southern  leaders. 
They  accepted  every  link  of  the  reasoning  which  Calhoun 
had  forged  ten  years  before:  in  the  Territories  neither 
Congress  nor  the  territorial  government  could  legislate 
against  slavery;  on  the  contrary,  Congress  as  the  agent 


The  Kansas-Nebraska  Bill  157 

of  the  States,  and  the  territorial  governments  as  the 
agents  of  Congress,  were  bound  to  fulfil  the  essence  of 
good  government  by  protecting  those  rights  of  property 
which  were  recognized  by  the  States ;  and  popular  sov- 
ereignty would  only  come  into  play  when  the  Territory 
should  itself  become  a  State,  and  should  decide  whether 
it  should  be  a  free  or  a  slave  State. 

These  were  the  basis  of  the  Southern  demands  for  a 
platform,  on  which  the  Charleston  Convention  split  in 
1860.  They  had  previously  been  accepted  by  the  Presi- 
dent and  the  official  leaders  of  the  Democratic  party,  and 
by  its  majority  in  the  Senate.  Douglas's  non-concur- 
rence led  to  his  removal  from  the  Committee  on  Terri- 
tories in  the  Senate,  and  practically  placed  him  out  of  the 
party  fold. 

Throughout  all  this  twelve-years  struggle,  "non-inter- 
vention by  Congress"  meant,  in  the  North,  that  Congress 
was  to  do  nothing  for  or  against  slavery  in  the  Territories, 
but  was  to  allow  the  people  of  the  Territories  to  do  as 
they  pleased ;  and,  in  the  South,  that  Congress  was  to  do 
nothing  against  slavery  in  the  Territories,  either  of  itself 
or  through  the  territorial  legislatures.  By  dexterous 
manipulation  of  phrases  the  Northern  and  Southern 
Democracy  had  united  to  pass  the  territorial  bills  of  1850 
and  1854,  neither  insisting  on  the  full  expression  of  its 
demands  in  words.  But  in  1857  the  Supreme  Court,  in 
the  Dred  Scott  case  (see  that  title),  decided  against  Doug- 
las and  popular  sovereignty,  and  for  the  full  vigor  of  the 
Calhoun  theory. 

Thereafter  the  Southern  leaders,  as  law-abiding  citizens, 
could  of  course  do  nothing  else  than  amplify  their  pre- 
vious demands  into  consistence  with  the  Supreme  Court's 
doctrine,  and,  further,  insist  upon  their  expression  in 
plain  terms.  In  the  Democratic  National  Convention  of 
1856  both  sections  had  been  content  with  a  bald  approval 
of  "non-interference  by  Congress  with  slavery  in  the 


158  The  Slavery  Controversy 


Territories,"  leaving  the  interpretation  of  this  phrase 
undecided.  In  the  convention  of  1860  the  two  sections 
formulated  their  respective  demands  in  plain  terms.  No 
manipulation  of  phrases  could  reconcile  them,  and  the 
convention  and  the  party  at  last  divided.' 

With  the  election  of  1860,  and  the  outbreak  of  the 
Rebellion,  popular  sovereignty  disappeared  with  the  evil 
for  which  it  was  designed  to  be  the  remedy. 

The  best  exposition  of  the  doctrine  of  "popular  sover- 
eignty" is  that  published  by\pouglas  in  September,  1859, 
as  cited  below.  In  it  he  insists  desperately  that  the  Dred 
Scott  decision  had  not  condemned  his  doctrine,  though 
he  admits  that,  if  it  had  so  condemned  it,  the  Seward 
dogma  would  be  correct,  that  "there  is  an  irrepressible 
conflict  between  opposing  and  enduring  forces,  which 
means  that  the  United  States  must  and  will,  sooner  or 
later,  become  either  entirely  a  slaveholding  nation  or 
entirely  a  free-labor  nation." 

This  belief  of  Douglas  will  account  for  the  offer  of  his 
followers  at  Charleston  "to  abide  by  the  decisions  of  the 
Supreme  Court  on  questions  of  constitutional  law."  But 
his  belief,  honest  as  it  undoubtedly  was,  was  evidently 
unfounded.  How  can  "the  opinion  of  the  court,  that 
the  act  of  Congress  which  prohibited  a  citizen  from  hold- 
ing and  owning  property  of  this  kind  [slave  property]  in 
the  territory  of  the  United  States  is  not  warranted  by 
the  Constitution,  and  is  therefore  void,"  be  reconciled 
with  a  power  in  Congress  to  authorize  the  people  of  the 
Territories  to  impose  the  same  prohibition? 

The  court  could  hardly  have  decided  against  Douglas 
more  plainly,  except  by  naming  him  and  his  doctrine. 
Nevertheless,  the  doctrine  of  Douglas,  that  the  Terri- 
tories are  held  only  for  the  purpose  of  becoming  States, 
that  they  are  therefore  really  "inchoate  States,"  that  it 
is  wise  and  just  to  allow  their  inhabitants  the  powers  of 

1  See  Democratic  Party. 


The  Kansas- Nebraska  Bill  159 

self-government  and  "the  regulation  of  their  domestic 
institutions  to  suit  themselves,"  is  well  founded,  and  has 
been  the  foundation  of  the  American  territorial  system 
since  1787. 

But  the  power  of  Congress,  nevertheless,  is  always 
latent,  and  may  be  exercised  whenever  Congress,  rightly 
or  mistakenly,  conceives  it  to  be  "for  the  general  wel- 
fare" to  do  so.  If  the  people  of  the  Territory  undertake 
to  harbor  anything  which  seems  to  Congress  a  moral  evil, 
a  lottery  system,  polygamy,  or  slavery,  it  is  the  right  and 
duty  of  Congress,  for  the  welfare  not  only  of  the  future 
State  but  of  all  the  States,  to  intervene  and  destroy  it. 
It  is  a  little  odd  that  the  Congresses  of  1854-58,  which 
were  so  quick  to  recognize  this  truth  in  the  case  of  poly- 
gamy in  Utah,  were  so  slow  to  recognize  it  in  the  case  of 
slavery  in  Kansas.  Popular  sovereignty  in  the  Territories 
is,  and  has  always  been,  a  privilege,  not  a  right ;  and  the 
privilege  is  to  be  exercised  in  strict  conformity  to  the 
terms  of  the  grant. 

THE  STRUGGLE  FOR  KANSAS. — Under  its  present 
(State)  boundaries  Kansas  is  formed  mainly  from  terri- 
tory acquired  by  the  Louisiana  Purchase ' ;  the  southwest 
portion,  lying  south  of  the  Arkansas  River  and  west  of 
longitude  23°  west  of  Washington  (100°  west  of  Green- 
wich), was  part  of  the  territory  ceded  to  the  United 
States  by  Texas  in  1850."  Under  its  territorial  boun- 
daries Kansas  did  not  include  this  southwest  portion, 
but  extended  west  to  the  Rocky  Mountains,  thus  taking 
in  part  of  the  modern  State  of  Colorado. 

The  greater  part  of  Kansas  was  a  part  of  the  district 
and  Territory  of  Louisiana,  and  of  the  Territory  of  Mis- 
souri, until  1821;  after  that  time  it  remained  for  thirty- 
three  years  without  an  organized  government.  About 
1843  tne  increase  of  overland  travel  to  Oregon  led  S.  A. 
Douglas  to  introduce  a  bill  in  the  House  of  Representa- 

1  See  Annexations   I.  *  See  Compromises,  V. 


The  Slavery  Controversy 

tives  to  organize  the  Territory  of  Nebraska,  covering  the 
modern  State  of  Kansas  and  all  the  territory  north  of  it, 
in  order  to  prevent  the  alienation  of  this  overland  route 
by  treaties  for  Indian  reservations.  This  bill  he  unsuc- 
cessfully renewed  at  each  session  until  1854,  when  Kansas 
was  at  last  organized  as  a  separate  Territory.1 

The  Missouri  Compromise  had  forever  prohibited 
/  slavery  in  this  and  all  other  territory  acquired  from 
j  France  north  of  36°  30'  north  latitude;  the  passage  of 
the  Kansas-Nebraska  bill,  which  provided  that  the  Terri- 
tories, when  admitted  as  States,  should  be  received  by 
Congress  "with  or  without  slavery,  as  their  constitution 
may  prescribe  at  the  time  of  their  admission,"  began  the' 
"Kansas  struggle"  between  free-State  and  slave-State 
immigrants  for  the  settlement  of  the  Territory  and  the 
control  of  its  conversion  into  a  State.  The  latter  were 
first  in  the  field,  owing  to  the  proximity  of  the  slave 
State  of  Missouri.  They  crossed  the  border  into  the  new 
Territory,  pre-empted  lands,  and  warned  free-State  im- 
migrants not  to  cross  the  State  of  Missouri,  which  barred 
the  straight  road  to  Kansas.  They  were  thus  able  tcT 
control  the  first  election  for  delegates  to  Congress,  No- 
vember 29,  1854.  A.  H.  Reeder,  the  Federal  Governor 
of  the  Territory,  arrived  in  Kansas  October  7,  1854,  and 
ordered  an  election  for  a  territorial  legislature  to  be  held 
March  30,  1855. 

Free-State  immigration  had  already  begun,  in  July, 
1854,  under  the  auspices  at  first  of  a  congressional  asso- 
ciation called  the  "Kansas  Aid  Society,"  and  afterward 
of  a  corporation  chartered  by  the  Massachusetts  Legis- 
lature, February  21,  1855,  called  the  "New  England 
Emigrant  Aid  Company,"  and  other  similar  associations. 
Before  this  evident  free-State  preparation  could  be  effec- 
tive the  March  election  took  place,  and  was  carried  by 
organized  bands  of  Missourians,  who  moved  into  Kansas 

1  See  Kansas-Nebraska  Bill. 


The  Kansas-Nebraska  Bill  161 

on  election  day,  voted,  and  returned  to  Missouri  at  night. 
The  territorial  census  of  February,  1855,  showed  2905 
legal  voters  in  the  Territory ;  in  the  election  of  the  next 
month  5427  votes  were  cast  for  the  pro-slavery  candidates 
and  791  for  their  opponents. 

These  figures  alone,  leaving  aside  the  testimony  to  the 
terrorizing  of  free-State  voters,  will  explain  why  the  free- 
State  settlers  always  refused  to  recognize  the  pro-slavery 
legislature  as  representing  anything  beyond  a  Missouri 
constituency. 

By  whatever  means  the  election  was  carried,  this  initial 
success  of  the  pro-slavery  element  gave  it  a  tremendous 
advantage  during  the  next  two  years.  Its  Legislature, 
which  met  at  Pawnee,  July  2,  1855,  proceeded  to  make 
Kansas  a  slave  Territory,  adopted  the  slave  laws  of  Mis- 
souri en  bloc,  with  a  series  of  original  statutes  denouncing 
the  penalty  of  death  for  about  fifty  different  offences 
against  the  system  of  slavery,  and  provided  that,  for  the 
next  two  years,  every  executive  and  judicial  officer  of 
the  Territory  should  be  appointed  by  the  Legislature  or 
its  appointees,  and  that  every  candidate  for  the  next 
Legislature,  every  judge  of  election,  and  every  voter,  if 
challenged,  should  swear  to  support  the  Fugitive-Slave 
law. 

The  territorial  Legislature  had  thus,  as  far  as  it  was 
able,  made  Kansas  a  slave  Territory,  and  guarded  against 
any  easy  reversal  of  its  action  by  subsequent  legislatures. 
The  free-State  settlers,  therefore,  ignoring  the  territorial 
Legislature,  took  immediate  steps  to  transform  Kansas 
into  a  State,  without  waiting  for  any  enabling  act  of 
Congress.  California  and  other  States  had  previously 
formed  governments  in  this  manner,1  but  the  parallelism 
was  denied  by  the  Democratic  Administration  at  Wash- 
ington on  the  ground  that  no  Territory  had  ever  been, 
or  could  properly  be,  thus  transformed  into  a  State  in 

1  See  Territories. 


VOL.  II. — II. 


162  The  Slavery  Controversy 

direct  opposition  to  the  constituted  authorities  of  the 
Territory. 

The  political  history  of  Kansas,  for  the  next  few  years, 
is  therefore  a  series  of  attempts  to  inaugurate  a  State 
government,  complicated  by  disobedience  to  territorial 
authorities,  indictments  of  free-State  leaders  for  treason, 
and  actual  armed  conflict  between  partisans  of  the  terri- 
torial and  State  governments. 

In  obedience  to  the  call  of  a  private  free-State  commit- 
tee, a  convention  met  at  Topeka,  September  19,  1855, 
and  ordered  an  election  for  delegates  to  a  constitutional 
convention.  Only  free-State  voters  took  part  in  the 
election.  The  convention  met  at  Topeka,  October  23d, 
and  formed  the  "Topeka  Constitution,"  prohibiting 
slavery,  which  was  submitted  to  popular  vote  and  was 
adopted,  December  I5th,  by  a  vote  of  1731  to  46,  only 
free-State  settlers  voting.  An  election  for  State  officers 
was  then  held,  January  15,  1856,  at  which  a  governor  (C. 
Robinson),  a  representative  to  Congress,  and  a  complete 
Legislature  and  State  government  were  chosen. 

The  bill  to  admit  the  State  of  Kansas,  under  the  Topeka 
constitution,  was  passed  by  the  House  of  Representa- 
tives, July  3,  1856,  by  a  vote  of  107  to  106,  but  failed  in 
the  Senate.  Nevertheless,  on  the  claim  that  the  State 
was  already  in  existence,1  the  free-State  Legislature  met 
at  Topeka,  July  4,  1856.  It  was  dispersed  by  Fed- 
eral troops  under  Colonel  Sumner,  by  orders  from  Wash- 
ington. 

This  action  had  been  foreshadowed  by  a  proclamation 
of  President  Pierce,  February  nth,  in  which  he  declared 
any  such  attempt  to  be  an  insurrection,  which  would 
"justify  and  require  the  forcible  interposition  of  the  whole 
power  of  the  General  Government,  as  well  to  maintain 
the  laws  of  the  Territory  as  those  of  the  Union."  It 
was  the  occasion  of  considerable  excitement,  in  and  out 

1  See  State  Sovereignty. 


The  Kansas-Nebraska  Bill  163 

of  Congress,  and  a  provision,  or  "rider,"  was  added  by 
the  Republican  majority  in  the  House  to  the  Army  Ap- 
propriation bill,  forbidding  the  use  of  the  army  to  enforce 
the  acts  of  the  territorial  legislature  of  Kansas. 

The  Senate  rejected  the  proviso,  and  during  the  debate 
the  time  fixed  for  adjournment  arrived  and  the  session 
of  Congress  closed,  August  18,  1856,  with  the  army  bill 
unpassed.  The  President  at  once  called  an  extra  session, 
in  which  the  army  bill  was  passed  without  the  "rider," 
and  Congress  again  adjourned,  August  3Oth. 

Long  before  this  time  Kansas  had  become  the  principal 
topic  of  newspaper,  political,  and  private  discussion. 
The  Territory  itself  had  fairly  relapsed  into  a  state  of 
nature,  the  free-State  settlers  disobeying  and  resisting 
the  territorial  government,  and  the  slave-State  settlers  dis- 
obeying and  resisting  the  State  government.  A  desul- 
tory civil  war,  waged  on  public  and  private  account, 
was  marked  by  the  murder  of  many  individuals  and  by 
the  sack  of  at  least  two  cities  in  the  free-State  section, 
Lawrence  (May  2ist),  and  Osawatomie  (June  5,  1856). 

All  this  would  have  been  of  no  more  permanent  inter- 
est than  the  early  lawlessness  of  California,  but  for  the 
premonitions  which  "bleeding  Kansas"  afforded  all  think- 
ing men  of  the  infinitely  more  frightful  convulsion  to 
come.  The  predominance  of  a  moral  question  in  politics, 
always  a  portentous  phenomenon  under  a  constitutional 
government,  was  made  unmistakable  by  the  Kansas 
struggle,  and  its  first  perceptible  result  was  the  disappear- 
ance, in  effect,  of  all  the  old  forms  of  opposition  to  the 
Democratic  party,  and  the  first  national  convention  of 
the  new  Republican  party,  June  17,  1856.'  Kansas,  it 
might  be  said,  cleared  the  stage  for  the  last  act  of  the 
drama,  the  Rebellion. 

Reeder,  the  first  territorial  governor,  had  quarrelled 
with  his  Legislature  soon  after  it  first  assembled  in  1855. 

1  See  Republican  Party. 


164  The  Slavery  Controversy 

He  had  convened  it  at  Pawnee  City  for  the  purpose,  as 
was  alleged,  of  increasing  the  value  of  his  own  property 
in  that  place;  and  when  the  Legislature  passed  an  act, 
over  his  veto,  to  remove  the  capital  to  Shawnee  Mission, 
he  refused  to  recognize  it  as  any  longer  a  legal  Legisla- 
ture, and  became  one  of  the  free-State  leaders.  At  the 
request  of  the  Legislature  the  President  removed  him, 
July  31,  1855,  and  appointed  Wilson  Shannon,  of  Ohio. 
Shannon  was  incompetent,  and  fled  from  the  Territory 
in  September,  1856. 

The  next  Governor,  John  W.  Geary,  of  Pennsylvania, 
arrived  in  Kansas  September  9,  1856,  and  by  a  skilful 
blending  of  temporizing  and  decided  measures  succeeded 
in  a  reasonable  time  in  disbanding  most  of  the  armed  and 
organized  forces  on  both  sides,  and  in  bringing  about  a 
temporary  lull  in  the  open  conflict.  Before  the  end  of 
the  year  he  even  claimed  to  have  re-established  order  in 
the  Territory.  Early  in  the  next  year  he  seems  to  have 
become  distrustful  of  the  sincerity  of  the  Federal  Ad- 
ministration in  supporting  him,  and  March  4,  1857,  he 
resigned.  Robert  J.  Walker,  of  Mississippi  (a  Pennsyl- 
vanian  by  birth),  was  appointed  in  his  place.  He  reached 
Kansas  May  25,  1857,  and  proved  to  be  one  of  the  most 
successful  of  the  territorial  governors.  It  must  be  noted, 
however,  that  his  work  had  been  much  simplified  by 
the  enormous  increase  in  the  free-State  immigration, 
which  had  by  this  time  almost  entirely  swamped  open 
opposition. 

Nevertheless,  Kansas  was  still  governed  by  the  nearly 
unanimously  pro-slavery  territorial  Legislature,  backed 
by  the  power  of  the  Federal  Government.  After  a  final 
attempt  of  the  free-State  Legislature  to  meet  at  Topeka, 
January  6,  1857,  which  was  prevented  by  the  arrest  of 
its  members  by  the  Federal  authorities,  the  free-State 
party  abandoned  the  Topeka  constitution  forever.  Gov- 
ernor Walker  was  successful  in  gaining  their  confidence, 


The  Kansas-Nebraska  Bill  165 

and  succeeded  in  inducing  them,  for  the  first  time,  to 
take  part  in  the  election  for  the  territorial  Legislature,  in 
October,  1857,  which  resulted  in  the  choice  of  a  free-State 
Legislature  and  delegate  to  Congress. 

Before  losing  their  hold  of  the  Legislature,  however, 
the  pro-slavery  party  had  used  it  to  call  a  constitutional 
convention,  which  met  at  Lecompton,  September  5, 
1857,  and  adopted  the  "Lecompton  Constitution,"  No- 
vember 7th.  It  sanctioned  slavery  in  the  State,  prohibited 
the  passage  of  emancipation  laws  by  the  Legislature,  for- 
bade amendments  until  after  1864,  and  provided  that  the 
constitution  should  not  be  submitted  to  popular  vote, 
but  should  be  finally  established  by  the  approval  of 
Congress  and  the  admission  of  the  State. 

Governor  Walker  had  repeatedly  promised  the  free- 
State  voters,  to  secure  their  participation  in  the  October 
election,  that  the  proposed  constitution  should  be  sub- 
mitted to  popular  vote;  the  convention  evaded  the  ful- 
filment of  the  pledge  by  submitting  to  a  popular  vote, 
December  2ist,  only  the  provision  sanctioning  slavery. 
The  vote  stood  6266  "for  the  constitution  with  slavery," 
and  567  "for  the  constitution  without  slavery,"  the  free- 
State  party  generally  declining  to  vote;  but  the  new 
territorial  Legislature  passed  an  act  submitting  the  whole 
constitution  to  popular  vote,  January  4,  1858,  when  the 
vote  stood  10,226  against  the  constitution,  138  for  it  with 
slavery,  24  for  it  without  slavery. 

The  whole  question  then  passed  into  national  politics, 
and  occupied  most  of  the  next  session  of  Congress, 
1857-8.  Both  branches  were  Democratic,  but  no  com- 
plete party  majority  could  be  secured  in  the  House  for 
the  approval  of  the  Lecompton  constitution.  The 
President  desired  and  urged  it;  the  Senate  passed  the 
necessary  bill,  March  23,  1858;  but  in  the  House  22 
Douglas  Democrats  and  6  Americans  united  with  the  92 
Republicans,  April  ist,  to  pass  a  substitute  requiring  the 


1 66  The  Slavery  Controversy 

resubmission  of  the  constitution  to  the  people  of  Kansas. 
As  a'  compromise,  both  Houses  passed,  April  3Oth,  the 
"English  Bill"  (so  called  from  its  mover),  according  to 
which  a  substitute  for  the  land  ordinance  of  the  Lecomp- 
ton  constitution  was  to  be  submitted  to  popular  vote  in 
Kansas ;  if  it  were  accepted  the  State  was  to  be  considered 
as  admitted ;  if  it  were  rejected  the  Lecompton  constitu- 
tion was  to  be  considered  as  rejected  by  the  people, 
and  no  further  constitutional  convention  was  to  be  held 
until  a  census  should  have  shown  that  the  population  of 
the  Territory  equalled  or  exceeded  that  required  for  a 
Representative.  August  3d,  the  people  of  Kansas  voted 
down  the  land  ordinance,  11,088  to  1788,  and  thus  finally 
disposed  of  the  Lecompton  constitution. 

Nevertheless,  the  territorial  Legislature  called  a  State 
convention,  which  met  at  Leaven  worth  and  adopted  a 
constitution,  April  3,  1858,  prohibiting  slavery.  It  was 
ratified  by  popular  vote,  but  was  refused  consideration 
by  the  Senate,  on  the  ground  that  Kansas  had  not  the 
requisite  population. 

The  territorial  Legislature  directed  the  question  of  a 
new  constitutional  convention  to  be  again  submitted  to 
popular  vote  in  March,  1859.  ^  was  approved;  the  con- 
vention met  at  Wyandotte  July  5th,  and  adopted  the 
"Wyandotte  Constitution,"  July  2/th,  which  was  rati- 
fied, October  4th,  by  a  vote  of  10,421  to  5,530. 

The  Senate  was  still  a  barrier  in  the  way  of  the  admis- 
sion of  Kansas,  and  it  was  not  until  the  withdrawal  of 
Southern  Senators '  had  changed  the  party  majority  in 
that  branch  of  Congress  that  Kansas  was  at  last  admitted 
as  a  State,  January  29,  1861,  under  the  Wyandotte  con- 
stitution, by  which  slavery  was  prohibited. 

On  Kansas-Nebraska  Bill  see  Congressional  Globe,  33d 
Congress,  1st  Session,  221 ;  Greeley's/Wz/zVtf/  Text-Book, 
79;  C\\\skey* s  Political  Text-Book,  346;  3  Spencer's  United 

1  See  Secession. 


The  Kansas- Nebraska  Bill  167 

States,  504;  Cutts's  Treatise  on  Party  Questions,  91;  2 
Stephens 's  War  Between  the  States,  241 ;  Buchanan  s  Ad- 
ministration, 26;  Botts's  Great  Rebellion,  147;  Benton's 
Examination  of  the  Dred  Scott  Decision,  156;  Harris's 
Political  Conflict,  155;  I  Draper's  Civil  War,  417;  I 
Greeley's  American  Conflict,  224;  New  Englander,  May, 
1861  ;  Giddings's  Rebellion,  364;  2  Wilson's  Rise  and  Fall 
of  the  Slave  Power,  378;  Cairnes's  Slave  Power,  115; 
Schuckers's  Life  of  Chase,  134;  Chase's  speech,  Feb. 
3,  1854,  Everett's  Speech,  Feb.  8,  1854,  Douglas's 
Speech,  March  3,  1854,  in  American  Orations ;  Rhodes, 
Schouler,  Burgess,  Hay  and  Nicolay ;  Theodore  Parker's 
Speeches,  297.  The  act  is  in  10  Stat.  at  Large,  277. 

The  historical  authorities  for  the  rise  and  fall  of  the 
idea  of  "popular  sovereignty"  in  the  Territories  will  be 
found  under  Democratic-Republican  Party,  V. ;  Repub- 
lican Party,  I.  The  Calhoun  doctrine  will  be  found  in  4 
Calhoun's  Works,  339  (resolutions  of  Feb.  19,  1847),  5355 
see  also  Taney's  opinion  in  Dred  Scott  Case;  2  Stephens's 
War  Between  the  States,  202;  and  Jefferson  Davis's  Sen- 
ate resolutions  of  May  24,  1860 ;  in  Greeley's  Political 
Text-Book  of  1860,  194.  Cass's  Nicholson  letter  in  full 
is  in  Cluskey's  Political  Text-Book  of  1860,  462.  The 
Douglas  doctrine  is  in  Harper' s  Magazine,  September, 
1859,  and  m  Cutts's  Treatise  on  Party  Questions,  123. 
The  former  article  was  answered  by  Attorney- General  J. 
S.  Black  in  pamphlet  Observations  on  it ;  and  the  medium 
between  the  two  is  taken  in  Reverdy  Johnson's  Remarks 
on  Popular  Sovereignty.  On  Douglas,  see  Sheahan's  Life 
of  Douglas;  Addresses  in  Congress  on  his  death ;  8  Atlan- 
tic Monthly ;  103  N.  A.  Review;  Wheeler's  History  of 
Congress,  60.  H.  A.  Wise's  Territorial  Government,  47, 
148,  accomplishes  the  difficult  feat  of  reaching  Calhoun's 
conclusions  from  Douglas's  premises. 

On  the  Struggle  for  Kansas  see  I  Poore's  Federal  and 
State  Constitutions ;  Cutts's  Treatise  on  Party  Questions, 


1 68  The  Slavery  Controversy 

84;  authorities  under  Kansas-Nebraska  Bill  ;  i  Greeley's 
American  Conflict,  235;  Greeley's  Political  Text-Book  of 
1860,  87;  Report  of  the  House  Special  Committee  on  the 
Troubles  in  Kansas  (Republican  report,  pp.  1-67,  Demo- 
cratic report,  pp.  68-109);  I  Draper's  History  of  the  Civil 
War,  409 ;  the  particulars  of  the  ' '  Emigrant  Aid  Society' ' 
are  in  2  Wilson's  Rise  and  Fall  of  the  Slave  Power,  465  ; 
3  Spencer's  United  States,  514;  Harris's  Political  Conflict 
in  America,  168;  Buchanan  s  Administration,  28;  Clus- 
key's  Political  Text-Book,  346  ;  Gihon's  Geary  and  Kansas 
(generally  the  fairest  contemporary  account) ;  Robinson's 
Kansas  ;  Gladstone's  Englishman  in  Kansas  ;  Holloway's 
History  of  Kansas  (1868);  Wilder 's  Annals  of  Kansas 
(1875);  4  Sumner's  Works,  127;  Porter's  West  in  1880, 
323  ;  Smith,  W.  H.,  Political  History  of  Slavery  ;  Curtis, 
Francis,  History  of  the  Republican  Party ;  Hart's  Chase; 
Storey's  Sumner ;  Bancroft's  Seward. 


CHAPTER  VIII 

THE  DRED   SCOTT  CASE 

I.  ORIGIN. — In  1820  slavery  was  prohibited  in  the 
province  of  Louisiana,  north  of  latitude  36°  30',  by  the 
Missouri  Compromise,  an  act  of  congressional  legisla- 
tion ;  in  1 846-50  it  was  attempted  to  extend  this  con- 
gressional prohibition  to  all  the  territory  acquired  from 
Mexico)  this  attempt  was  defeated  by  the  compromise 
of  1850,  by  which  Congress  refrained,  and  ordered  the 
territorial  legislatures  to  refrain,  from  meddling  with 
the  subject  of  slavery  in  the  new  Territories;  and  in 
1854  the  abrogation  of  the  Missouri  Compromise,  leaving 
the  people  of  each  Territory  to  decide  the  question  of 
freedom  or  slavery  for  themselves,  began  the  Kansas 
struggle,  which,  in  1856,  had  gone  far  enough  to  show 
that  free-State  immigration  would  always  overwhelm 
slave-State  immigration  in  a  contest  of  this  kind. 

The  question  of  slavery  had  come  to  overshadow  all 
others  in  politics,  and  the  advocates  of  its  extension  and 
of  its  restriction  had  begun    to  exert  every  means  to 
obtain  control  of  all  departments  of  the  Government.^ 
The  former  held  the  Presidency  and  the  Senate,  while? 
the  latter,  under  the  name  of  anti-Nebraska  men,  had/ 
just  gained  control  of  the  House;  the  Dred  Scott  case,i 
which  had  been  in  the  Federal   courts  since  1854,  was/ 
now  to  be  the  test  of  the  affiliations  of  the  Supreme 
Court.1 

1  See  Compromises,  IV.,  V.  ;  Annexations,  I.  ;  Wilmot  Proviso  ;  Kansas- 
Nebraska  Bill  ;  Slavery  ;  Democratic- Republican  Party,  V.  ;  Republican 
Party,  I. 

169 


The  Slavery  Controversy 

II.  FACTS. — In  1834  Dred  Scott  was  the  negro  slave  of 
Dr.  Emerson,  of  the  regular  army,  who  took  him  from 
Missouri  to  Rock  Island,  in  Illinois,  where  slavery  was 
prohibited  by  statute,  and  thence,  in  May,  1836,  to  Fort 
Snelling,    in    Wisconsin,    or    Upper    Louisiana,    where 
slavery  was  prohibited    by  the    Missouri    Compromise. 
In    1836   Dred   married    Harriet,   another  slave  of  Dr. 
Emerson,  and  in  1838  Dr.  Emerson,  with  his  slaves,  re- 
turned to   Missouri.      Here  Dred,   sometime  afterward, 
discovered   that    his    transfer    by  his  master  to  Illinois 
and  Wisconsin  had  made  him  a  free  man,  according  to 
previous  decisions  of  the  Missouri  courts;   and  in  1848, 
having   been  whipped  by  his  master,    he  brought  suit 
against  him  for  assault  and  battery  in  the  State  Circuit 
Court  of  St.  Louis  County,  and  obtained  judgment  in 
his  favor.     On  appeal,  the  Supreme  Court  of  Missouri, 
in  1852,  two  justices  in  favor  and  the  chief  justice  dis- 
senting, reversed  the  former  Missouri  decisions,  refused 
to  notice  the  Missouri  Compromise  or  the  constitution  of 
Illinois,    and  remanded  the  case  to  the    Circuit  Court, 
where  it  remained  in  abeyance  pending  the   argument 
and  decision  in  the  Supreme  Court  of  the  United  States. 

III.  PLEADINGS.— Soon  after  the  hearing  in  the  State 
Supreme  Court,  Dr.  Emerson  sold  his  slaves  to  John  F. 
A.  Sandford,  of  the  city  of  New  York.     On  the  ground 
that    Dred    and    Sandford    were    "  citizens   of   different 
States,"   of  Missouri    and   of    New   York,   suit    against 
Sandford  for  assault  and  battery  was  at  once  brought  in 
the  Federal  Circuit  Court  for  Missouri.      Here  Sandford, 
at  the  April  term  of  1854,  pleaded  to  the  jurisdiction  of 
this  court,  on  the  ground  that  plaintiff  was  not,  as  alleged 
in  the  declaration,  a  citizen  of  Missouri,  but  "a  negro  of 
African    descent :    his   ancestors   were   of   pure   African 
blood,  and  were  brought  into  this  country  and  sold  as 
negro    slaves."     To  this  plea  Dred  demurred,    that   is, 
claimed  judgment  and  acknowledgment  as  a  citizen,  even 


The  Dred  Scott  Case 


171 


on  defendant's  own  showing,  and  the  demurrer  was  sus- 
tained. Sandford,  answering  over,  then  pleaded  in  bar 
to  the  action  that  the  plaintiff  was  his  negro  slave,  and 
that  he  had  only  "gently  laid  hands"  on  him  to  restrain 
him,  as  he  had  a  right  to  do. 

The  court  instructed  the  jury  that  the  law  was  with  the 
defendant ;  plaintiff  excepted ;  and  on  the  exception  the 
case  went  to  the  United  States  Supreme  Court,  where  it 
was  argued  at  December  term  1855,  and  again  at  Decem- 
ber term,  1856,  but  judgment  was  deferred  until  March 
6,  1857,  in  order  to  avoid  any  increase  of  the  excitement 
already  attending  the  presidential  election. 

The  essential  points  for  decision  were  two :  (i^  Had  the 

>  •  f   ' 

Federal   Circuit    Court   jurisdiction,   that   is, /was   Dred 

Scott  a  "citizen  of  Missouri"  in  the  view  of  the  Consti- 

^ •^•^^Madtt^v^^7*l*MM^>>^>^^M>MIMn<l***M*M"> '  ""  *  **m*m1^ 

tution? \  2.  If  the  court  had  jurisdiction,  was  its  decision 

i  ~m  "       -  -I 

against  Dred  Scott  correct? 

In  considering  these  two  questions  it  must  be  remem- 
bered that  Federal  courts  are  required  by  the  act  of 
1789,  Section  25,  to  follow  the  statutes  and  construc- 
tions of  the  respective  States  wherever  they  come  in 
question,  unless  they  are  in  conflict  with  the  Consti- 
tution. 

IV.  DECISION. — The  Missouri  Supreme  Court  had  de- 
cided, on  the  evidence  submitted,  that  Dr.  Emerson's 
residence  in  Illinois  and  Wisconsin  was  only  temporary 
and  in  obedience  to  the  orders  of  his  Government ;  that 
he  had  no  intention  of  changing  his  domicile;  and  that, 
whatever  might  be  Dred's  status  while  in  Illinois  and 
Wisconsin,  on  his  return  to  Missouri  the  local  law  of 
Missouri  attached  upon  him  and  his  servile  character 

j.  j 

redintegrated.  On  this  general  ground  (Chief  Justice 
TaneyAwith  the  assent  of  Justices  Wayne,  Nelson,  Grier, 
Daniel^  Catron,  and  Campbell  (McLean  and  Curtis  dissent- 
ing), decided  that  the  plaintiff  in  error  was  not  a  citizen 
of  Missouri  in  the  sense  in  which  that  word  is  used  in  the 


The  Slavery  Controversy 

Constitution  ;  that  the  Circuit  Court  of  the  United  States, 
for  that  reason,  had  no  jurisdiction  in  the  case  and  could 
give  no  judgment  in  it;  and  that  its  judgment  must,  con- 
sequently, be  reversed  and  a  mandate  issued,  directing 
the  suit  to  be  dismissed  for  want  of  jurisdiction. 

Had  the  Supreme  Court  confined  its  action  to  a  denial 
of  jurisdiction  in  this  case  on  the  ground  taken  by  the 
Missouri  State  Supreme  Court,  the  decision  would  prob- 
ably have  been  accepted  generally  as  law,  however  harsh, 
in  the  case  of  slaves  removed  temporarily  from  State 
jurisdiction  and  then  brought  back.  But,  impelled,  as 
has  been  charged,  by  a  superserviceable  desire  to  forward 
the  interests  and  designs  of  slaveholders  in  the  Terri- 
tories, or,  as  is  much  more  probable,  by  the  wide  sweep 
taken  by  counsel  on  both  sides  in  their  arguments,  the 
chief  justice  and  the  assenting  justices  proceeded  to  de- 
liver a  course  of  individual  lectures  on  history,  politics, 
ethics,  and  international  law,  the  exact  connection  of 
which  with  the  legal  subject-matter  in  hand  it  was  in 
many  cases  difficult  for  the  justices  themselves  to  make 
perfectly  clear. 

In  these  additions  to  the  denial  of  jurisdiction  lay  the 
interest,  importance,  and  far-reaching  consequences  of 
the  Dred  Scott  decision.  These  additions  were  a  denial 
of  the  legal  existence  of  the  African  race,  as  persons,  in 
American  society  and  constitutional  law,  a  denial  of 
the  supreme  control  of  Congress  over  the  Territories, 
and  a  denial  of  the  constitutionality  of  the  Missouri 
Compromise. 

i.  Sandford's  plea,  given  above,  denied  the  Circuit 
Court's  jurisdiction,  on  the  ground  that  Dred  was  of  the 
African  race,  as  if  that  necessarily  implied  lack  of  citizen- 
ship. The  Circuit  Court  had  overruled  the  plea,  and, 
although  this  was  not  one  of  Dred  Scott's  exceptions, 
the  Supreme  Court  reverted  to  the  plea  and  sustained  it. 

The  opinion  of  the  court  asserted  that  the  African 


The  Dred  Scott  Case 

jrace,  for  over  a  century  before  the  adoption  of  the  Con- 
stitution, had  been  considered  as  a  subordinate  class  of 
beings,  so  far  inferior  that  they  had  no  rights  which  the 
white  man  was  bound  to  respect ;  that  they  had  not  come 
to  this  country  voluntarily,  as  persons,  but  had  been 
brought  here  as  merchandise,  as  property,  as  things ; 
that  they  held  that  position  in  the  view  of  the  framers 
of  the  Constitution,  and  were  not  included  in  the  words 
"people"  or  "citizens"  in  the  Declaration  of  Independ- 
ence, the  Articles  of  Confederation,  or  the  Constitution ; 
and  that,  even  when  emancipated,  they  retained  that 
character,  and  were  not,  nor  could  by  any  possibility  ever 
become,  citizens  of  the  United  States  or  citizens  of  a 
State  in  the  view  of  the  Constitution,  capable  of  suing 
or  being  sued,  or  possessed  of  civil  rights,  except  such 
as  a  State,  for  its  own  convenience  and  within  its  own 
jurisdiction,  might  choose  to  grant  them. 

Of  the  two  dissenting  justices,  McLean  denied,  and 
Curtis  admitted,  that  the  plea  of  Sandford  was  properly 
before  the  Supreme  Court  and  might  be  examined  on 
writ  of  error;  but  both  relied  on  the  plain  distinction  be- 
tween "citizens"  and  "electors,"  on  the  Constitution's 
repeated  mention  of  negroes  as  "persons,"  and  on  the 
undoubted  fact  that  free  negroes,  at  the  time  of  the 
adoption  of  the  Constitution,  had  been  not  only  citizens 
but  voters  in  at  least  five  of  the  States,  and  were  still 
voters  except  where,  as  in  North  Carolina  and  New  Jer- 
sey, the  right  to  vote  had  been  taken  away  by  a  subse- 
quent change  in  the  State  constitution ;  and  held  that, 
even  though  free  negroes  might  not  be  electors  in  any 
particular  State,  they  were  still  always  citizens,  capable 
of  suing  and  being  sued,  at  least  on  the  same  footing 
with  women  and  minors. 

2.  The  arguments  of  counsel  had  brought  up  the  ques- 
tion of  the  power  of  Congress  (under  Article  IV.,  §  3, 
T  2,  of  the  Constitution)  to  "make  all  needful  rules  and 


i 74  The  Slavery  Controversy 


regulations   respecting   the  territory  or  other   property 
belonging  to  the  United  States." 

On  this  point  the  opinion  of  the  court  held  that  this 
language,  by  previous  decisions  and  the  plain  sense  of 
the  words,  referred  only  to  the  territory  and  property  in 
possession  of  the  United  States  when  the  Constitution  As 
was  adopted,  and  not  to  Louisiana  and  other  territory 
afterward  acquired ;  that  the  right  to  govern  these  last- 
named  Territories  was  only  the  inevitable  consequence  of 
the  right  to  acquire  territory,  by  war  or  purchase;  that 
Congress,  therefore,  had  not  the  absolute  and  discretion- 
ary power  to  make  "all  needful  rules  and  regulations" 
respecting  them,  but  only  to  make  such  rules  and  regu- 
lations as  the  Constitution  allowed;  that  the  right  of 
every  citizen  to  his  "property,"  among  other  things,  was 
guaranteed  by  Amendment  V. ;  that  slaves  were  recog- 
nized as  "property"  throughout  the  Constitution;  and 
that  Congress  had  therefore  no  more  right  to  legislate  for 
the  destruction  of  property  in  slaves  in  the  Territories 
than  to  legislate  for  the  establishment  of  a  form  of  State 
religion  there. 

On  the  contrary, /the  dissenting  opinions  held  that 
slavery  was  valid  only  by  State  law,  and  that  a  slave  was 
"property"  only  by  virtue  of  State  law\  that  the  Con- 
stitution was  explicit  on  this  point  (as,  '  no  person  held 
to  service  or  labor  in  one  State,  under  the  laws  thereof," 
etc.);  that  the  slave,  when  taken  by  the  master's  act  out 
of  the  jurisdiction  of  the  State  law  which  made  him  a 
slave,  at  once  lost  his  artificial  character  of  property  and 
resumed  his  natural  character  of  a  person ;  and  that  the 
State  law  could  not  accompany  him  to  the  Territories. 

Of  course  this  reasoning,  which  it  seems  impossible  t<f 
overthrow,  would  necessarily  have  made  all  the  Territories, 
south  as  well  as  north  of  latitude  36°  30',  free  soil,  unless 
slavery  should  be  established  there  by  act  of  Congress  or 
by  popular  agreement  in  forming  State  constitutions. 


The  Dred  Scott  Case 

/Jb  From  the  preceding  doctrine  the  opinion  of  the_court^ 
necessarily  held  that  the  act  of  March  6,  1820,  commonly 
known  as  the  Missouri  Compromise,  which  prohibited 
slavery  in  the  province  of  Louisiana  north  of  latitude 
36°  30'  and  outside  of  Missouri,  was  an  unconstitutional 
assumption  of  power  by  Congress,  and  was  therefoFefvoid 
and  inoperative,  and  incapable  of  conferring  freedom 
upon  any  one  who  was  held  as  a  slave  under  the  la\vs  of 
any  one  of  the  States,  even  though  his  owner  had  taken 
him  to  the  Territory  with  the  intention  of  becoming  a 
permanent  resident. 

Mr.  Justice  Catron,  dissenting  from  the  majority's 
denial  of  the  power  of  congressional  legislation  for  the 
Territories,  yet  denied  that  an  act  of  Congress  could  over- 
ride Article  III.  of  the  Louisiana  treaty  of  1803,  which 
guaranteed  to  the  inhabitants  of  the  ceded  territory  the 
full  enjoyment  of  their  liberty  and  property  until  States 
should  be  formed  there ;  and  also  held  the  Missouri  Com- 
promise void,  as  violating  the  constitutional  equality  of 
citizens  of  the  different  States  in  their  rights,  privileges, 
and  immunities. 

On  the  contrary,  the  two  dissenting  justices  held  that 
the  majority  had  "assumed"  power  to  attack  the  Missouri 
Compromise ;  that  that  act  was  a  proper  instance  of  the 
power  of  Congress  to  legislate  in  full  for  the  Territories, 
which  had  been  exercised  without  question  since  the 
foundation  of  the  Government ;  that  it  was  no  violation 
of  the  equality  of  citizens  for  the  reasons  above  assigned ; 
and  that  the  Louisiana  treaty  had  nothing  to  do  with 
the  question,  since  the  organization  of  the  slave  States 
of  Louisiana,  Arkansas,  and  Missouri  had  embraced 
every  slave  in  the  entire  ceded  territory. 

When  a  court  has  decided  a  question  or  case  before  it, 
any  further  remark  or  expression  of  opinion,  even  by  the 
Supreme  Court  of  the  United  States,  on  a  point  not 
legally  involved,  is  an  obiter  dictum,  of  no  great  weight 


The  Slavery  Controversy 

for  other  courts  as  an  authority  or  precedent,  and  of  no 
weight  at  all  for  the  public  at  large. 

How  far  the  voluminous  opinions  of  the  Dred  Scott 
decision  were  obiter  dicta  after  the  denial  of  the  Circuit 
Court's  jurisdiction  is  at  least  doubtful.  Chief  Justice 
Taney  and  Justice  Wayne  endeavor  to  establish  the  con- 
necting link  between  the  denial  of  jurisdiction  and  the 
attack  on  the  Missouri  Compromise  upon  the  ground  of 
the  difference  between  writs  of  error  to  a  State  court  and 
to  a  Federal  circuit  court.  In  the  former  case  the  in- 
quiry would  be  whether  the  Supreme  Court  had  jurisdic- 
tion to  review  the  case,  and,  if  not,  the  writ  would  be  at 
an  end;  but  in  the  latter  case  the  inquiry  would  be 
whether  the  Circuit  Court  had  jurisdiction,  and  to  settle 
this  the  whole  case,  including  the  merits,  was  open  to 
inspection. 

But  the  following  extract  from  Judge  Curtis's  opinion 
deserves  consideration : 

"  I  dissent,  therefore,  from  that  part  of  the  opinion  of  the 
majority  of  the  court  in  which  it  is  held  that  a  person  of  Afri- 
can descent  cannot  be  a  citizen  of  the  United  States;  and  I 
regret  that  I  must  go  further,  and  dissent  both  from  what  I 
deem  their  assumption  of  authority  to  examine  the  constitu- 
tionality of  the  act  of  Congress  commonly  called  the  Missouri 
compromise  act,  and  from  the  grounds  and  conclusions  an- 
nounced in  their  opinion.  Having  first  decided  that  they 
were  bound  to  consider  the  sufficiency  of  the  plea  to  the  juris- 
diction of  the  circuit  court,  and  having  decided  that  this  plea 
showed  that  the  circuit  court  had  not  jurisdiction,  and  conse- 
quently that  this  is  a  case  to  which  the  judicial  power  of  the 
United  States  does  not  extend,  they  have  gone  on  to  examine 
the  merits  of  the  case  as  they  appeared  on  the  trial  before  the 
court  and  jury,  on  the  issues  joined  on  the  pleas  in  bar,  and  so 
have  reached  the  question  of  the  power  of  Congress  to  pass 
the  act  of  1820.  On  so  grave  a  subject  as  this  I  feel  obliged 
to  say  that,  in  my  opinion,  such  an  exertion  of  judicial  power 


The  Dred  Scott  Case 

transcends  the  limits  of  the  authority  of  this  court,  as  described 
by  its  repeated  decisions  and,  as  I  understand,  acknowledged 
in  this  opinion  of  the  majority  of  the  court.  ...  A  great 
question  of  constitutional  law,  deeply  affecting  the  peace  and 
welfare  of  the  country,  is  not,  in  my  opinion,  a  fit  subject  to 
be  thus  reached." 

The  Dred  Scott  decision  was  the  last  attempt  to  de- 
cide the  contest  between  slavery  extension  and  slavery 
restriction  by  form  of  law,  and  the  course  of  events  began 
at  once  to  tend  with  increasing  rapidity  toward  a  decision 
by  force.1 

The  Dred  Scott  decision  was  finally  overturned  h>y  the 
first  section  of  the  Fourteenth  Amendment,  which  made 
"all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,"  citizens  of  the 
United  States,  and  of  the  State  wherein  they  reside.2 

See  (I.)  authorities  under  articles  referred  to.  (II.) 
Dred  Scott  vs.  Emerson,  15  Mo.,  682.  (III.)  Dred  Scott 
vs.  Sandford,  \()How.,  393;  Benton '  s  Examination  of  tJte 
Dred  Scott  Decision;  Tyler's  Life  of  R.  B.  Taney,  373, 
578;  2  B.  R.  Curtis's  Works,  310;  9  Curtis,  72;  I  Greeley's 
American  Conflict,  251;  Hurd's  Law  of  Freedom  and 
Bondage ;  Buchanan's  Buchanans  Administration,  48; 
Giddings's  History  of  the  Rebellion,  402;  Nott's  Slavery 
and  the  Remedy;  Slaughter  House  Cases,  16  Wall.,  36;  and 
authorities  under  Slavery.  See  also  American  History 
Leaflet,  No.  23;  2  Rhodes's  History  of  the  United  States; 
Schouler's  History  of  the  United  States,  vol.  v. ;  Hay  and 
Nicolay's,  Life  of  Lincoln;  H.  L.  Carson's  The  Supreme 
Court,  vol.  ii.,  ch.  xv. ;  von  Hoist,  vi.,  ch.  i. ;  Seward's 
Speech,  March  3,  1858;  Thayer's  Cases  in  Constitutional 
Law;  N.  Y.  Nation,  July  5,  1894;  Gray  and  Lowell, 
Legal  Review  of  the  Case  of  Dred  Scott. 

1  See  Secession,  Slavery. 

2  See  Civil  Rights  Bill ;  Constitution,  IV. 


VOL.  II. — 12. 


CHAPTER   IX 

POLITICAL  PARTIES,  1824-1876 

I.  THE  DEMOCRATIC  PARTY. — In  1824  the  delusion 
of  an  era  of  good  feeling  broke  to  pieces.  John  Quincy 
Adams  was  chosen  President.  His  electoral  vote  was 
simply  a  repetition  of  the  votes  of  the  former  Federal 
party,  with  the  addition  of  a  few  scattering  votes  in  new 
States,  and  the  larger  part  of  the  always  doubtful  vote 
of  New  York.  His  inaugural  address,  in  its  emphatic 
approbation  of  a  system  of  internal  improvements,  would 
alone  have  forced  a  strict  construction  opposition  to  him  ; 
and  the  fact  seems  to  be  that,  while  the  peculiar  circum- 
stances of  his  election  were  the  nominal  ground,  the  real 
ground  of  the  opposition  to  him  lay  in  the  principles  of 
broad  construction  unhesitatingly  avowed  and  ably  sup- 
ported by  him. 

The  opposition  to  President  Adams,  ending  in  the 
election  of  Andrew  Jackson  as  President  in  1828,  was  the 
culmination  of  a  change  in  the  political  condition  of 
the  United  States  which  had  been  proceeding  for  many 
years,  but  most  rapidly  since  1810.  In  the  older  States 
suffrage  had  always  been  limited  by  property  qualifica- 
tions of  varying  amounts;  in  the  newer  States  it  was 
given  to  all  white  male  citizens  over  twenty-one.  This 
change  reacted  upon  the  older  States;  Maryland  in  1810, 
Connecticut  in  1818,  New  York  in  1821,  and  Massachu- 
setts in  1822,  either  by  amendments  or  by  new  constitu- 
tions, abolished  their  property  qualifications;  and  in  the 

178 


Political  Parties  1824-1876  179 

few  States  which  still  retained  them  they  were  now 
only  nominal  in  amount  or  in  enforcement. 

The  dam  through  which  this  current  of  democracy  had 
burst  was  not  so  high,  nor  was  the  force  of  the  current 
so  strong,  as  to  greatly  endanger  the  electoral  system, 
but  it  was  sufficient  in  all  but  six  States  in  1824,  and  in 
every  State  but  one  in  1828,  to  take  the  choice  of  elec- 
tors from  the  legislatures  and  to  give  it  to  the  people, 
and  it  was  sufficient  also  to  make  Andrew  Jackson  Presi- 
dent. Benton's  idea  that  the  election  of  1828  was  solely 
a  rebuke  of  the  result  of  the  election  of  1824  is  a  poli- 
tician's error;  it  does  not  account  for  the  new  men  who 
swarmed  into  public  life  everywhere  about  that  time,  for 
the  horrified  disgust  of  the  leaders  of  both  parties  at 
Washington  at  the  "millennium  of  the  minnows,"  "the 
triumphant  reign  of  King  Mob,"  or  for  the  chasm  which 
yawns  between  the  political  life  of  1820  and  that  of  1829. 
The  truth  is,  that  in  1829  the  people  first  assumed  control 
of  the  governmental  machinery  which  had  been  held  in 
trust  for  them  since  1789,  and  that  the  party  and  admin- 
istration which  then  came  into  power  was  the  first  in  our 
history,  which  represented  the  people  without  restriction 
and  with  all  the  faults  of  the  people. 

Both  parties  claimed  the  name  of  Republicans  until 
after  the  election  of  1828,  the  supporters  of  Adams  being 
the  "administration  wing,"  and  those  of  Jackson  the 
"opposition."  But  the  word  "national"  soon  became  a 
favorite  addition  to  the  titles  of  Adams  newspapers, 
and  passed  thence  to  the  official  name  of  the  Adams 
party;  while  the  opposition,  after  using  for  a  time  the 
name  of  "Jackson  men,"  soon  came  to  assert  a  special 
title  to  the  name  of  Democrat,  though  they  still  form- 
ally used  the  name  of  Republican,  but  never  with  the 
addition  of  national.  The  new  Democratic  party,  when 
it  elected  Jackson,  had  but  one  controlling  aim — the 
election  of  Jackson;  to  this  political  principles  were 


i8o  The  Slavery  Controversy 

subordinate.  In  its  ranks  were  included  protectionists, 
internal-improvement  men,  supporters  of  the  Bank  of  the 
United  States,  and  men  of  every  shade  and  variety  of 
political  opinion.  Jackson  himself,  before  his  election, 
had  been  in  no  sense  opposed  to  protection,  to  internal 
improvements,  or  to  the  bank ;  but  after  his  election  his 
drift  toward  a  strict  construction  of  the  Constitution  was 
hastened  by  the  fact  that  all  his  National  Republican 
opponents,  and  particularly  Clay,  were  broad  construc- 
tionists,  and  by  the  inherited  and  natural  tendencies  of 
his  Southern  supporters.  Jackson's  first  and  most  urgent 
duty  was  to  give  tone  and  discipline  to  his  party,  and 
this  he  did  with  military  precision.  In  the  North  the 
offices  under  control  of  the  national  appointing  power 
were  for  the  first  time  used  as  party  instrumentalities,  as 
they  had  been  used  for  thirty  years  in  New  York,  by  the 
dismissal  of  opponents,  and  the  appointment  of  support- 
ers, of  the  Administration. 

The  new  proscriptive  system  undoubtedly  strengthened 
the  party  in  the  North,  by  attracting  to  it  the  interested 
services  of  local  leaders,  and,  aided  by  the  system  of 
nominating  conventions  soon  after  introduced,  it  reacted 
upon  opposing  parties  and  compelled  them  to  adopt  it 
also;  its  evil  effect,  the  evolution  of  a  controlling  class  of 
small  politicians,  whose  only  trade  is  the  production  of 
party  hatred,  still  waits  for  correction. 

In  the  South  the  extreme  Southern  party  had  only 
supported  Jackson  because  of  the  loss  of  their  chosen 
leader,  Crawford,  but  a  large  part  of  it,  headed  by  John 
C.  Calhoun,  the  Vice-President,  still  affected  an  inde- 
pendence which  ill-suited  the  discipline  of  party,  or  the 
temper  of  Jackson ;  he  therefore  broke  off  relations  with 
Calhoun  in  1830,  broke  up  his  Cabinet  in  1831,  and  re- 
moved the  Calhoun  members  from  it,  and  in  1832-3, 
when  South  Carolina  undertook  to  make  the  doctrine  of 
State  sovereignty  practical,  he  was  able  to  apply  so  sud- 


Political  Parties  1824-1876  181 

den  and  severe  a  pressure  to  the  politicians  of  that  State 
that  they  were  very  willing  to  retire  from  an  untenable 
position  under  the  cover  afforded  by  the  good  nature  of 
Congress.1  For  his  success  in  this  instance,  however,  he 
was  much  indebted  to  his  popularity  in  other  Southern 
States,  due  particularly  to  his  action  in  Indian  affairs, 
which  left  South  Carolina  to  face  him  alone. 

The  first  message  of  Jackson,  December  8,  1829,  took 
the  strict-construction  ground,  which  has  already  been 
noticed,  upon  the  subject  of  the  tariff,  that  it  should  be 
regulated  solely  with  a  design,  i,  to  obtain  revenue  "to 
pay  the  debts  of  the  United  States,"  and  2,  "to  provide 
for  the  common  defence  and  general  welfare' '  by  laying 
duties  to  retaliate  upon  nations  which  protect  their  own 
manufactures,  or  by  laying  duties  to  protect  those  manu- 
factures which  are  essential  in  war.  May  27,  1830,  in  his 
veto  of  the  Maysville  road  bill,  the  President  also  took 
the  strict-construction  view  of  the  powers  of  Congress  as 
to  internal  improvements,  holding  that  appropriations  for 
that  purpose,  if  confined  to  local  or  State  improvements, 
were  unconstitutional,  and,  if  more  general  or  national, 
were  usually  injurious  and  always  to  be  cautiously 
attempted. 

In  both  these  questions  the  theory  of  the  party  has 
always  been  in  perfect  harmony  with  Jackson's  views, 
but  its  practice  has  very  often  been  inconsistent,  because 
of  the  difficulty  of  controlling  the  interests  or  feelings  of 
individual  members.  Of  this  we  find  in  Jackson's  own 
case  too  many  instances  for  special  mention.  Through- 
out the  whole  of  his  first  term  he  was  compelled  to  make 
unprecedented  use  of  the  veto  power  to  defeat  bills  for 
internal  improvements  passed  by  the  National  Republi- 
cans with  the  assistance  of  a  part  of  the  Democrats.* 

Before  the  first  half  of  Jackson's  first  term  was  over, 
he  had  brought  order  out  of  the  party  chaos,  and  had 

1  See  Nullification.  *  See  Veto. 


1 82  The  Slavery  Controversy 

re-established  the  party  on  a  basis  of  strict  construction 
and  in  a  state  of  strict  discipline,  with  the  exception  of 
the  impracticable  nullificationists  of  the  South,  who  re- 
mained in  opposition  for  about  twelve  years.  This  pro- 
cess had  not  been  completed  without  driving  from  the 
party  many  voters  who  were  only  "Jackson  men,"  not 
strict  constructionists ;  but,  on  the  other  hand,  it  at- 
tracted a  larger  number  of  former  Federalists  who  were 
not  sufficiently  loose  constructionists  to  agree  with  the 
advanced  doctrines  of  the  Whigs  or  National  Republi- 
cans, and  who,  therefore,  fell  into  the  Democratic  party, 
just  as  many  Whigs  did  at  the  formation  of  the  Republi- 
can party  in  1856. 

In  May,  1832,  the  party  held  its  first  national  con- 
vention, at  Baltimore,  indorsed  the  nomination  to  the 
Presidency  which  several  legislatures  had  offered  to 
Jackson,  and  for  the  Vice-Presidency  nominated  Martin 
Van  Buren,  who  had  supplanted  Calhoun  in  the  con- 
fidence both  of  the  President  and  the  party.  In  the 
election  of  1832  the  Democratic  candidates  were  suc- 
cessful, receiving  219  of  the  288  electoral  votes.  In  1828 
they  had  carried  the  entire  South  (except  Delaware  and 
half  of  Maryland's  vote),  the  entire  West  (Ohio,  Indiana, 
and  Illinois),  and  Pennsylvania  and  half  of  New  York's 
vote  in  the  Middle  States.  In  1832  they  gained  Maine, 
New  Hampshire,  New  Jersey,  and  the  rest  of  New  York's 
vote,  and  lost  Kentucky,  which  thenceforth  followed  the 
fortunes  of  Clay  and  the  Whig  party. 

As  soon  as  the  party  had  been  restored  to  its  legitimate 
political  basis,  it  was  inevitable  that  it  should  come  into 
conflict  with  the  Bank  of  the  United  States,  whose  char- 
ter was  to  expire  in  1836.  It  was  doubly  bound  to 
oppose  the  re-charter  of  the  bank :  i,  as  a  strict-construc- 
tion party,  it  was  compelled  to  take  the  views  laid  down 
by  Jefferson  in  1791  ' ;  and  2,  as  a  popular  party,  it  neces- 

1  See  Bank  Controversies,  II. 


Political  Parties  1824-1876  183 

sarily  held  that  the  public  servants  of  the  United  States 
must  be  human  beings,  open  to  impeachment  and  pun- 
ishment in  case  of  misbehavior,  and  that  the  creation  of  a 
private  corporation  to  do  the  duties  of  public  servants, 
and  to  enjoy  to  its  own  profit  and  without  interest  the 
custody  of  the  public  funds,  was  wrong,  unfair,  and 
unwise,  even  if  it  were  lawful. 

The  story  of  the  struggle,  which  really  began  before 
1832,  and  was  a  prominent  feature  in  the  presidential 
election  of  that  year,  is  given  elsewhere.1  It  resulted  in 
the  downfall  of  the  bank,  and  the  transfer  of  the  public 
funds  to  various  banks,  which  had  been  established  by 
State  charters,  and  were  selected  by  the  Secretary  of  the 
Treasury.  The  influence  of  these  "pet  banks"  had 
largely  aided  in  making  New  York  Democratic  in  1832, 
and  was  exerted  to  the  same  effect  in  1836. 

In  May,  1835,  the  Democratic  convention  met  at 
Baltimore.  It  again  adopted,  and  thus  made  a  perma- 
nent rule  of  Democratic  conventions,  the  "two-thirds 
rule,"  a  which  made  two  thirds  of  the  votes  necessary  to  a 
nomination.  The  pronounced  favor  of  the  President  had 
made  Martin  Van  Buren  his  destined  successor,  and  had 
given  him  the  control  of  the  party  machinery.  Indeed, 
the  extreme  Southern  faction  took  no  part  in  the  con- 
vention, relying  on  the  nomination  of  Hugh  L.  White 
for  President,  and  John  Tyler  for  Vice-President,  by 
Southern  legislatures.  The  convention  nominated  Van 
Buren  for  President  unanimously,  and  R.  M.  Johnson 
for  Vice-President  by  178  votes  to  87  for  Wm.  C.  Rives, 
of  Virginia.  No  platform  was  adopted.  In  the  election 
of  1836  Van  Buren  was  elected  by  170  votes  out  of  294. 
This  year  the  Democratic  vote  was  increased  by  that  of 
Rhode  Island  and  Connecticut,  but  lost  that  of  New 
Jersey.  Georgia  and  Tennessee  voted  for  White,  and 

1  See  Bank  Controversies,  III.  ;  Deposits    Removal  of. 
1  See  Nominating  Conventions. 


1 84  The  Slavery  Controversy 

Virginia,  by  voting  for  Tyler,  threw  the  election  of  the  Vice- 
President  into  the  Senate,  where  Johnson  was  chosen.' 

So  long  as  Jackson's  strict  construction  had  stopped 
with  his  war  upon  the  bank,  selfish  interest  and  a  desire 
to  handle  the  public  funds  made  the  State  banks,  par- 
ticularly those  of  New  York,  his  ardent  supporters ;  when 
he  and  his  successor,  Van  Buren,  proceeded  to  make  the 
party  a  "hard-money"  party,  as  its  strict-construction 
principle  dictated,  he  lost  their  support.  The  removal 
of  the  deposits,  their  transfer  to  the  State  or  "pet" 
banks,  and  the  "specie  circular,"*  were  the  three  steps 
which  brought  on  the  panic  of  1837.  But  in  spite  of 
panic,  suspension  of  specie  payments,  and  a  clamor  for 
governmental  relief  from  men  of  all  parties,  Van  Buren 
maintained  his  party's  political  principles  with  a  steadi- 
ness which  makes  his  one  term  of  the  Presidency  alto- 
gether the  brightest  part  of  his  varied  career.  He  refused 
to  countenance  any  Federal  interference  with  the  course 
of  business,  threw  all  his  official  influence  into  an  effort 
for  the  complete  "divorce  of  bank  and  state,"  and,  after 
a  three-years  struggle,  accomplished  it  by  the  establish- 
ment of  the  sub-Treasury  system,  July  4,  1840.' 

This  made  the  Federal  Government  the  guardian  of  its 
own  funds,  relieved  it  from  direct  intercourse  with  any 
bank  and  from  the  need  to  give  any  bank  the  power  to 
issue  national  paper  money,  and  by  consequence  made 
gold  and  silver  the  only  money  recognized  by  the  Federal 
Government. 

The  Democratic  party,  after  a  twelve-years  novitiate, 
was  thus  at  last  a  strict-construction  party  in  every 
mooted  political  question.  Its  national  convention  at 
Baltimore,  May  5,  1840,  was,  therefore,  for  the  first  time, 
ready  to  formulate  its  party  principles,  which  it  did  in  a 
platform  whose  principal  resolutions  were  as  follows : 

1  See  Disputed  Elections,  III.  *  See  Bank  Controversies,  IV. 

1  See  Independent  Treasury. 


Political  Parties  1824-1876  185 

"i.  That  the  Federal  Government  is  one  of  limited  powers, 
derived  solely  from  the  Constitution;  and  that  the  grants  of 
power  shown  therein  ought  to  be  strictly  construed  by  all  the 
departments  and  agents  of  the  Government;  and  that  it  is 
inexpedient  and  dangerous  to  exercise  doubtful  constitutional 
powers.  2.  That  the  Constitution  does  not  confer  authority 
upon  the  Federal  Government  to  commence  or  carry  on  a 
general  system  of  internal  improvement.  4.  That  justice  and 
sound  policy  forbid  the  Federal  Government  to  foster  one 
branch  of  industry  to  the  detriment  of  another,  or  to  cherish 
the  interest  of  one  portion  to  the  injury  of  another  portion  of 
our  common  country.  ...  5.  That  it  is  the  duty  of 
every  branch  of  the  Government  to  enforce  and  practise  the 
most  rigid  economy  in  conducting  our  public  affairs,  and  that 
no  more  revenue  ought  to  be  raised  than  is  required  to  defray 
the  necessary  expenses  of  the  Government.  6.  That  Con- 
gress has  no  power  to  charter  a  United  States  bank;  that  we 
believe  such  an  institution  one  of  deadly  hostility  to  the  best 
interests  of  the  country,  dangerous  to  our  republican  insti- 
tutions and  the  liberties  of  the  people,  and  calculated  to  place 
the  business  of  the  country  within  the  control  of  a  concen- 
trated money  power,  and  above  the  laws  and  the  will  of  the 
people.  8.  That  the  separation  of  the  moneys  of  the  Govern- 
ment from  banking  institutions  is  indispensable  for  the  safety 
of  the  funds  of  the  Government  and  the  rights  of  the  people." 

The  omitted  portions  refer  chiefly  to  slavery,  which  is 
elsewhere  considered.1 

On  this  platform  Van  Buren  was  unanimously  re- 
nominated,  and  the  selection  of  candidates  for  Vice- 
President  was  left  to  the  States,  with  the  hope  of 
throwing  the  election  for  that  office  into  the  Democratic 
Senate. 

This  platform  was  checkmated  by  the  Whigs  with  the 
"hard  cider  and  log-cabin"  campaign  of  1840,*  based,  as 
the  Democrats  indignantly  alleged,  on  "noise,  numbers, 

1  See  Slavery.  »  See  Whig  Party,  II. 


1 86  The  Slavery  Controversy 

and  nonsense,"  with  a  studious  ignoring  of  political  prin- 
ciple, and  an  entire  reliance  on  the  military  reputation 
of  "Tippecanoe" — in  fact,  quite  parallel  to  the  original 
Democratic  campaigns  of  1828  and  1832.  A  dexterous 
use  of  four  years  of  panic  gave  the  Whigs  the  small  per- 
centage of  increase  necessary  to  carry  most  of  even  the 
States  which  had  been  reliably  Democratic  since  1828. 
New  Hampshire  alone  in  New  England,  Virginia,  South 
Carolina,  and  Alabama  in  the  South,  and  Illinois,  Mis- 
souri, and  Arkansas  in  the  West,  were  Democratic; 
everything  else  was  Whig. 

This  result  of  nominating  a  man  who  had  been  a  real 
party  leader  fixed  the  Democratic  managers  for  the  future 
to  the  policy  of  nominating  subordinates,  and  made  Polk, 
Pierce,  and  Buchanan  Presidents. 

About  this  time  the  Whigs  began  to  apply  the  name 
loco-foco  to  the  whole  Democratic  party.  The  original 
loco-focos  were  a  faction  of  the  New  York  City  Democ- 
racy, which  originated  in  a  dislike  to  the  profuse  creation 
of  State  banks  in  New  York  after  the  downfall  of  the 
United  States  Bank;  it  was  opposed  to  Tammany,  and 
to  the  grant  of  special  privileges  to  corporations  by  char- 
ter, and  was  in  favor  of  a  judiciary  elected  by  the  people, 
as  the  New  York  constitution  of  1846  soon  afterward 
provided.1  Van  Buren's  course  while  in  office,  which 
had  arrayed  all  the  State  banks  against  him,  brought  the 
loco-focos  back  to  their  party ;  and  the  Whigs  hastened 
to  mark  their  belief  that  the  whole  Democratic  party  was 
now  hostile  to  all  banks,  business  interests,  and  property, 
by  thus  making  the  name  loco-foco  general  in  its  applica- 
tion. For  the  next  five  years,  1840-45,  therefore,  the 
Whig  publications  carefully  avoided  the  word  Democrat, 
and  used  loco-foco  instead. 

The  Congress  which  was  elected  in  1840,  and  met  in 
1841,  was  Whig,  but  not  by  the  two-thirds  majority 

1  See  Loco-Foco. 


Political  Parties  1824-1876  187 

necessary  to  pass  bills  over  the  veto  of  Tyler,  who  had 
succeeded  Harrison.  It  was  therefore  powerless  to  do 
anything  further  than  to  balk  the  President.  The  policy 
which  the  Democratic  leaders  followed  was  to  preserve 
an  official  neutrality  between  the  Whigs  and  the  Presi- 
dent, while  individuals  and  unofficial  assemblages  of 
enthusiastic  Democrats  all  over  the  country  fed  Tyler 
with  delusive  hopes  of  a  Democratic  nomination  for  the 
Presidency  in  1844. 

In  this  way  the  separation  between  the  Whigs  and  the 
President  was  made  permanent ' ;  the  Whig  efforts  to  re- 
establish a  national  bank  were  frustrated8;  and  upon  the 
expiration  of  the  compromise  tariff  of  1833,"  the  Whig 
majority,  after  ineffectual  attempts  to  pass  a  protective 
tariff,  with  a  clause  for  the  distribution  of  surplus  revenue 
among  the  States,4  was  forced  to  pass  the  tariff  act  of 
August  30,  1842,  which  was  sufficiently  free  from  the 
principle  of  protection  to  apparently  satisfy  the  Demo- 
crats and  to  do  service  as  a  party  cry  in  the  next  campaign. 

The  first  half  of  Tyler's  administration  is  one  of.  the 
most  singular  episodes  in  the  Democratic  party's  history ; 
beaten,  to  all  appearance,  overwhelmingly  at  the  polls  in 
1840,  it  yet  shaped  all  important  legislation  for  the  next 
two  years  to  its  own  liking. 

The  party's  success  was  not  confined  to  its  action  as  a 
minority  in  Congress,  backed  by  the  President ;  it  found 
abundant  encouragement  in  the  State  and  congressional 
elections  of  1841-3.  Returning  prosperity  had  destroyed 
the  usefulness  of  the  panic  as  a  political  factor,  and  all 
the  States  which  had  been  Democratic  after  1827,  but 
which  had  voted  for  Harrison  by  small  majorities  in 
1840,  now  reversed  their  vote;  even  the  States  of  Mary- 
land, Connecticut,  and  Louisiana,  usually  Whig,  now 
elected  Democratic  State  governments. 

1  See  Whig  Party,  II.  3  See  Nullification. 

s  See  Bank  Controversies,  IV.  *  See  Internal  Improvements. 


1 88  The  Slavery  Controversy 

When  Congress  met  in  1843  the  Senate  was  still  Whig 
by  a  small  majority,  but  the  House  was  Democratic  by 
more  than  a  two-thirds  vote,  and  a  Democratic  Speaker 
was  chosen  without  difficulty.  This  result,  in  the  branch 
of  Congress  which  was  fresh  from  the  people,  presaged 
the  election  of  a  Democratic  President  in  1844,  according 
to  the  singularly  close  coincidence,  from  1800  until  1876, 
between  a  party's  success  in  electing  the  Speaker  of  the 
even  numbered  Congresses  and  its  success  in  the  closely 
following  presidential  election. 

Every  sign  in  the  political  sky  pointed  to  the  early  and 
secure  possession  of  power  by  the  Democratic  party; 
and  it  is  beyond  expression  discreditable  to  the  political 
acuteness  of  Southern  leaders,  to  the  tempers  of  their 
constituents,  or  to  both,  that  they  should  have  seized 
this  very  time  to  force  their  party  into  a  false  and  fatal 
position  upon  the  question  of  the  extension  of  slavery. 
If  they  desired  to  preserve  slavery  in  the  South  against 
the  growing  abolitionist  feeling  in  the  North,  every 
axiom  of  the  economy  of  politics  called  upon  them  to 
insist  upon  strict  construction  to  the  full,  to  intrench 
slavery  within  State  limits,  and  to  trust  the  natural  con- 
servatism of  the  American  people  for  the  maintenance  of 
constitutional  boundaries.  They  chose,  instead,  to  ex- 
tend slavery  by  loose  construction  and  then  to  defend 
the  acquisition  by  strict  construction;  an  error  parallel 
with  that  which  led  to  Gettysburg  and  the  downfall  of 
the  Confederacy — the  unwise  assumption  of  the  offensive 
by  the  naturally  defensive  party.1 

Since  1830  Calhoun  and  his  little  faction  of  Adullamites 
had  generally  been  in  opposition,  uniting  with  the  Whigs 
at  one  time  to  oppose  and  censure  Jackson,  and  again  to 
oppose  Van  Buren.  Their  Democracy  was  entirely  sub- 
sidiary to  the  maintenance  of  the  sectional  rank  of  the 
South  and  to  the  defence  of  slavery.  In  attaining  these 

1  See  Slavery. 


Political  Parties  1824-1876  189 

objects  they  preferred,  if  possible,  to  follow  the  path  of 
strict  construction,  but  were  always  willing  to  take  loose 
construction  where  strict  construction  was  unavailable. 

Before  his  nomination  to  the  Vice-Presidency  by  the 
Whigs,  Tyler  had  always  belonged  to  the  Calhoun  fac- 
tion, and  as  he  became  farther  separated  from  the  Whig 
party  he  began  to  draw  upon  the  Calhoun  faction  for 
members  of  his  Cabinet.  In  March,  1844,  Calhoun  him- 
self became  Secretary  of  State.1 

The  great  object  of  the  Calhoun  faction,  an  object  to 
which  the  Northern  wing  of  the  Democratic  party  was 
profoundly  indifferent,  and  in  support  of  which  the 
legitimate  Southern  wing  had  hitherto  been  by  no  means 
united,  was  the  annexation  of  Texas,  and  in  1844,  after 
a  skilfully  managed  struggle  of  sixteen  months,  the 
Calhoun  faction,  using  the  Tyler  administration  as  a 
stepping-stone,  got  control  of  the  national  Democratic 
organization  and  through  it  committed  the  party  to 
Texas  annexation. 

The  methods  of  this  success  are  by  no  means  clear,  for 
we  have  only  meagre  data  of  the  composition  of  the  con- 
vention, or  of  the  authority  and  instructions  of  its  dele- 
gates. It  is  certain  that  a  majority  of  the  delegates  were 
pledged  to  vote  for  Van  Buren,  and  consequently  against 
annexation.  Benton  and  the  Van  Buren  leaders  alleged 
that  the  Calhoun  clique,  by  months  of  intrigue,  induced 
a  sufficient  number  of  Van  Buren  delegates  to  join  the 
annexationists  in  voting  a  continuance  of  the  two-thirds 
rule,  for  the  surreptitious  purpose  of  defeating  Van 
Buren  and  fanning  "the  firebrand  cast  into  the  party  by 
the  mongrel  administration  at  Washington"  ;  the  annexa- 
tionists, on  the  other  hand,  asserted  that  the  apparent 
Van  Buren  majority  was  of  no  real  value;  that  the  Van 
Buren  delegates,  particularly  from  the  North,  were  not 
chosen  by  the  people,  but  by  small  State  conventions  of 

1  See  Administrations. 


190  The  Slavery  Controversy 

self-appointed  political  managers;  and  that  the  whole 
New  York  delegation,  for  example,  represented  but  nine 
thousand  Democratic  voters.  Both  sides  were  probably 
correct :  there  is  nothing  at  all  improbable  or  unfamiliar 
in  either  version. 

The  important  result  in  this  connection,  however,  was 
convention  action  which  ultimately  placed  in  jeopardy 
the  basic  principles  of  the  party,  and  whose  effects  the 
country,  as  well  as  the  party,  has  never,  for  a  moment 
since,  ceased  to  feel. 

The  national  convention  met  at  Baltimore,  May  27, 
1844,  and  the  first  step  in  its  three-days  session  was  to 
adopt  the  two-thirds  rule  by  a  vote  of  148  to  118,  the 
minority  being  Van  Buren's  real  friends.  On  the  first 
ballot,  by  force  of  instructions,  Van  Buren  had  146  out 
of  262  votes,  a  majority,  but  not  two  thirds.  Thence  he 
fell  and  Lewis  Cass  rose  until,  on  the  eighth  ballot,  Van 
Buren  had  104  votes,  Cass  114,  and  James  K.  Polk,  whose 
name  then  first  appeared,  44.  On  the  ninth  ballot  Polk 
received  233  out  of  264  votes  and  was  nominated.  Van 
Buren's  close  political  friend,  Silas  Wright,  was  nomi- 
nated for  the  Vice-Presidency,  in  spite  of  Tyler's  living 
example.  He  declined,  and  George  M.  Dallas,  of  Penn- 
sylvania, was  substituted. 

The  strict-construction  platform  of  1840  was  re- 
adopted,  with  two  additional  resolutions  against  the  dis- 
tribution of  the  proceeds  of  land  sales  among  the  States,1 
and  against  any  attacks  on  the  veto  power3;  and  a  final 
resolution  asserted  the  title  of  the  United  States  to  the 
whole  of  Oregon,  and  closed  as  follows:  "That  the  re- 
occupation  of  Oregon,  and  the  re-annexation  of  Texas, 
at  the  earliest  practicable  period,  are  great  American 
measures  which  this  convention  recommends  to  the  cordial 
support  of  the  Democracy  of  the  Union."  However 
cleverly  disguised,  it  is  apparent  that  the  annexation  of 

1  See  Internal  Improvements.  *  See  Veto. 


Political  Parties  1824-1876  191 

Texas,  for  which  the  Constitution  afforded  no  warrant 
whatever,  could  only  be  masquerading  in  a  strict-con- 
struction platform. 

In  the  presidential  election  of  1844  the  Democratic 
candidates  were  elected,  and  the  Congress  which  met  in 
1845  was  Democratic  in  both  branches.  Polk  and  Dallas, 
however,  had  only  a  small  plurality  of  the  popular  vote, 
and  a  majority  of  the  electoral  votes  was  only  obtained 
by  the  action  of  the  Abolitionists,  or  Liberty  party,1  in 
withholding  from  Clay  so  many  votes  as  to  give  Polk  the 
vote  of  New  York  and  Michigan  and  his  election.  The 
vote  of  Pennsylvania  also  was  obtained  by  a  sacrifice 
of  party  principle ;  for  party  benefit  in  that  State,  Polk 
avowed  himself  a  free-trader  with  a  leaning  toward  protec- 
tion, and  Pennsylvania  was  carried  by  the  cry,  "Polk, 
Dallas,  and  the  [semi-protective]  tariff  of  1842." 

The  new  departure  of  the  party  had  apparently  been 
very  little  to  its  real  advantage  from  the  first. 

Texas  was  immediately  made  a  State,  and,  this  accom- 
plished, the  party  leaders  reverted  to  strict  construction, 
of  which  Polk's  messages,  barring  always  the  Texas  ques- 
tion, are  models.  The  first  report  of  the  new  Secretary 
of  the  Treasury,  December  3,  1845,  recommended  a  tariff 
for  revenue  only,  and  this  recommendation  was  adopted 
to  the  full  by  the  tariff  act  of  July  30,  1846,  which,  with 
the  exception  of  a  further  reduction  of  duties  in  1857, 
remained  in  force  until  1861.  The  Sub-Treasury  was  re- 
established August  6,  1846."  The  passage  of  internal 
improvement  bills  gave  the  President  an  opportunity  for 
veto  messages,  August  3,  1846,  and  December  15,  1847, 
which  form  a  complete  digest  of  his  party's  theory  and 
precedents  on  this  question. 

The  remainder  of  Polk's  administration  was  occupied 
in  the  settlement  of  the  Oregon  question,  the  prosecution 

1  See  Abolition,  II. 

1  See  Independent  Treasury. 


i92  The  Slavery  Controversy 

of  the  war  with  Mexico,  and  the  opening  skirmishes  over 
the  disposition  of  the  territory  acquired  from  that  coun- 
try by  the  treaty  of  peace. 

In  these  Texas  was  again,  and  more  emphatically,  a 
firebrand  for  the  party.  The  Northern  Democrats  gen- 
erally supported  the  Wilmot  Proviso,  which  excluded 
slavery  from  the  new  territory1  ;  the  Southern  Democrats 
were  at  first  content  with  voting  against  the  proviso,  but 
its  persistent  renewal  soon  began  to  increase  the  number 
of  Southern  converts  to  the  doctrine  which  Calhoun  had 
for  some  time  advanced,  and  which  the  whole  Southern 
Democracy  adopted  in  1857,  tnat  tne  Constitution  pro- 
tected slavery  in  all  the  Territories,  and  that  Congress 
could  not  interfere  with  slavery  there."  This  sectional 
division  in  the  party  gave  little  promise  of  success  in 
1848,  and  the  large  Whig  majority  in  the  House  in  De- 
cember, 1847,  added  to  the  doubtfulness  of  the  prospect. 

The  Democratic  national  convention  met  in  Baltimore 
May  22,  1848.  Lewis  Cass  was  nominated  for  the  Presi- 
dency on  the  fourth  ballot  by  179  votes  to  38  for  Levi 
Woodbury,  of  New  Hampshire,  and  33  for  James  Bu- 
chanan. For  the  Vice-Presidency  William  O.  Butler 
was  nominated  on  the  third  ballot. 

The  convention  renewed  the  platform  of  1840,  adding 
to  it  fourteen  long  resolutions  which  gave  it  no  additional 
strength ;  they  are  a  mere  political  pamphlet,  and  do  not 
need  to  be  here  given.  Yancey,  of  Alabama,  offered  an 
additional  resolution  that  Congress  had  no  more  power 
to  interfere  with  slavery  in  the  Territories  than  in  the 
States,  but  this  was  voted  down,  216  to  36.  Two  dele- 
gations were  present  from  New  York,  the  Barnburners 
and  the  Hunkers,  the  former  being  Van  Buren's  friends, 
hitherto  the  "regular"  and  controlling  managers  of  the 
State  Democracy,  and  the  latter  the  new  faction  sup- 
ported by  the  Polk  administration.  The  convention 

1  See  Wilmot  Proviso.  9  See  Slavery. 


Political  Parties,  1824-1876          193 

admitted  both,  dividing  the  vote  of  the  State  between 
them,  whereupon  both  withdrew. 

The  presidential  election  of  1848  resulted  in  the  defeat 
of  the  Democratic  candidates.  This  defeat  was  entirely 
due  to  political  management ;  it  must  not  be  attributed 
to  the  Free-Soil  vote  alone,  or  to  the  slavery  question, 
which  was  just  on  the  verge  of  becoming,  but  had  not 
yet  quite  become,  the  leading  question  of  American 
politics.  The  party  leaders  had  simply  reckoned  ill  in 
leaving  out  of  their  calculations  Van  Buren,  who  was 
fighting  for  political  existence  in  his  State. 

The  conscientious  Free-Soilers,  out  of  New  York,  who 
would  not  in  any  event  have  voted  for  either  Cass  or 
Taylor,  injured  the  Whig  party  most,  for  their  vote  gave 
Cass  and  Butler  pluralities  in  Illinois,  Indiana,  Iowa, 
Maine,  Michigan,  Ohio,  and  Wisconsin;  the  political 
Free-Soilers '  in  New  York,  who  had  originally  nominated 
Van  Buren  for  President,  and  John  A.  Dix  for  Governor, 
polled  120,510  votes  in  the  State,  against  114,318  for 
Cass,  and  218,603  for  Taylor,  and  thus  inflicted  upon  the 
Democratic  party  the  fatal  loss  of  New  York.  A  union 
of  the  two  factions,  as  in  1852,  would  have  given  the 
36  votes  of  the  State  and  the  election  to  Cass  by  an 
exact  reversal  of  the  electoral  votes  for  himself  and  his 
opponents. 

The  legitimate  strength  of  parties  was  better  shown  at 
the  same  election  in  the  choice  of  the  House  which  met 
in  1849,  where  the  Democrats  had  a  slight  plurality,  the 
Free-Soilers  holding  the  balance  of  power.  The  Senate 
was  Democratic  by  nearly  a  two-thirds  vote. 

The  Compromise  of  1850,  as  afterward  interpreted  by 
the  Kansas-Nebraska  Bill,  marks  the  point  where  the 
Democratic  party  plainly  began  to  swerve  from  its  his- 
toric line  of  development** 

1  See  Barnburners,  Free-Soil  Party. 

1  See  Compromises,  V.  ;  Kansas-Nebraska  Bill. 
VOL.  ii. — 13. 


194  The  Slavery  Controversy 

That  compromise,  it  is  true,  was  only  the  foreordained 
sequence  to  the  annexation  of  Texas;  the  Territories, 
Utah,  New  Mexico,  and  California,  had  been  obtained 
by  loose  construction,  and  now  strict  construction,  the 
denial  at  first  of  the  advisability  of  congressional  interfer- 
ence, and  then  of  the  power  of  Congress  to  exclude 
slavery  from  them,  was  to  be  applied  to  defend  the 
acquisition.  But  the  cardinal  canon  of  the  Democratic 
party '  had  always  been  to  ignore  in  politics,  as  far  as 
possible,  the  existence  of  slavery. 

The  most  influential  portion  of  the  agricultural  North- 
ern Democracy  was,  indeed,  in  1844,  distinctly,  but  not 
aggressively,  anti-slavery,  determined  to  restrain  slavery 
within  its  State  limits,  but  equally  determined  not  to 
pursue  it  inside  of  those  limits. 

In  September,  1843,  the  party's  national  organ,  The 
Democratic  Review,  did  not  fear  to  speak  as  follows:  "Of 
black  slavery  we  have  little  to  say  here  and  now.  God 
forbid  that  that  little  should  be  in  its  justification.  We 
deplore  the  existence  of  so  extraordinary  an  anomaly  in 
a  country  of  absolute  freedom  in  most  respects,  while  we 
wait  with  patience  the  workings  of  an  overruling  Provi- 
dence in  behalf  of  our  black  brethren."  And  even  so 
late  as  1848  the  Ohio  Democratic  State  Convention  de- 
clared that  it  "looked  upon  the  institution  of  slavery  in 
any  part  of  the  Union  as  an  evil,  and  unfavorable  to  the 
full  development  of  the  spirit  and  practical  benefits  of 
free  institutions";  and  that  it  felt  it  to  be  a  duty  "to 
use  all  the  power  clearly  given  by  the  national  compact 
to  prevent  its  increase,  to  mitigate  and  finally  to  eradicate 
the  evil." 

Until  the  culmination  of  the  Texas  annexation  policy 
it  would  be  safe  to  say  that  the  national  Democratic 
party  was  composed  of  a  Northern  agricultural  element 
which  was  generally  unfriendly  to  slavery,  a  Northern 

1  See  also  Whig  Party. 


Political  Parties,  1824-1876  195 

urban  and  commercial  element  which  was  generally  indif- 
ferent on  the  subject,  and  a  Southern  agricultural  element 
which  was  distinctly  pro-slavery ;  and  that  the  three  ele- 
ments had  united  into  a  national  party  because  of  their 
accord  on  every  subject  excepting  slavery,  which  they  did 
not  regard  as  a  necessary  or  proper  question  for  political 
discussion  or  action.  But  the  success  of  the  Southern 
wing  in  1844  broke  this  tacit  compact,  by  bringing  into 
the  political  arena  a  vast  extent  of  new  territory  whose 
status  as  to  slavery  could  not  be  settled  without  a  political 
struggle. 

The  consequent  discussion  of  slavery,  while  it  alienated 
the  Democratic  anti-slavery  element,  compelled  the  party 
more  and  more  to  abandon  its  traditional  policy,  to  ap- 
pear as  the  half-avowed  supporter  of  slavery  extension, 
and  thus  ultimately  to  force  the  formation  of  a  party  of 
slavery  restriction — which  meant  war,  unless  one  section 
of  the  Union  should  change  its  temper  or  its  labor 
system. 

Before  this  last  result  could  be  reached,  the  new  policy 
was  to  have  a  most  destructive  effect  upon  the  rationale 
of  the  party. 

Hitherto  the  great  strength  of  the  Democratic  party  had 
been  its  agricultural  element ;  its  most  widely  trusted 
leaders,  from  Jefferson,  Macon,  and  Gerry  down  to  Jack- 
son and  Silas  Wright,  had  been  engaged  in  agriculture; 
and  its  general  supremacy  in  agricultural  States  had  only 
occasionally  been  disputed  through  the  desire  for  protec- 
tion for  special  interests,  such  as  flax  and  wool.  But  in 
the  new  prominence  which  the  party's  mistake  in  1844 
had  led  it  to  give  to  slavery  over  its  real  principles  only 
one  agricultural  section,  the  South,  had  any  friendly  in- 
terest ;  and  the  history  of  these  ten  years  is  only  a  list  of 
defections  of  Northern  agricultural  States  from  the  party, 
beginning  with  Maine,  Vermont,  New  Hampshire,  Michi- 
gan, Ohio,  Wisconsin,  and  Iowa  in  1856,  and  ending  with 


i96  The  Slavery  Controversy 

the  stampede  of  the  entire  West  in  1860.  This  last  loss 
has  never  since  been  fully  recovered. 

The  consequences  of  the  Compromise  of  1850  were  not 
at  first  apparent,  and  the  general  belief  that  the  spirit  of 
slavery  discussion  had  been  exorcised  from  politics  carried 
the  party  triumphantly  through  the  year  1852.  The 
Taylor-Fillmore  administration  ended  with  an  almost 
two-thirds  Democratic  majority  in  both  branches  of 
Congress. 

June  i,  1852,  the  national  convention  met  at  Baltimore, 
and  on  the  forty-ninth  ballot  nominated  Franklin  Pierce 
for  President.  The  vote  on  the  first  ballot  was :  Cass, 
116;  Buchanan,  93;  Douglas,  20;  Marcy,  27;  and  27 
scattering.  Buchanan  rose  to  104  votes  on  the  twenty- 
second  ballot ;  Douglas  to  92  on  the  thirtieth ;  Cass  to 
131  on  the  thirty-fifth;  Marcy  to  97  on  the  forty-fifth; 
and  Pierce,  whose  name  was  introduced  on  the  thirty-fifth 
ballot,  rose  from  55  to  282  votes  on  the  last  two  ballots. 
For  Vice-President  Wm.  R.  King  was  nominated  unan- 
imously on  the  second  ballot. 

The  platform  added  a  long  number  of  resolutions  to 
that  of  1840,  the  only  important  additions  being  one 
against  abridging  the  privilege  of  naturalization,1  another 
indorsing  the  Compromise  of  1850,  and  another  which 
attempted  to  hush  the  slavery  question  again  as  follows : 
"That  the  Democratic  party  will  resist  all  attempts  at 
renewing,  in  Congress  or  out  of  it,  the  agitation  of  the 
slavery  question,  under  whatever  shape  or  color  the 
attempt  may  be  made." 

In  the  presidential  election  of  1852,  the  Democratic 
candidates  were  successful  by  a  small  popular,  and  an 
overwhelming  electoral,  majority.  Only  Massachusetts 
and  Vermont  in  the  North,  and  Kentucky  and  Tennessee 
in  the  South,  voted  against  Pierce  and  King ;  and  none 
of  these  by  more  than  three  thousand  majority.  In  the 

1  See  American  Party. 


Political  Parties,  1824-1876          197 

South  the  other  States  which  had  been  hitherto  usually 
or  always  Whig,  Maryland,  North  Carolina,  Florida, 
Georgia,  and  Louisiana,  were  now  permanently  Demo- 
cratic ;  even  Delaware,  for  the  first  time  in  her  history, 
with  the  dubious  exception  of  1820,  chose  Democratic 
electors. 

The  promptness  with  which  a  majority  of  the  Southern 
voters  recognized  and  accepted  the  Democratic  doctrine 
of  strict  construction  as  the  only  present  means  by  which 
to  defend  slavery  in  the  Mexican  acquisition,  brought 
pro-slavery  Southern  Whigs  by  thousands  into  the  Demo- 
cratic party,  and  made  it  progressively  more  pro-slavery 
in  that  section ;  while  in  the  North  the  prevailing  belief 
that  the  Compromise  of  1850  was  intended  only  to  ignore 
the  slavery  question  in  the  new  Territories,  Utah,  New 
Mexico,  and  Arizona,  to  stop  slavery  discussion,  and  to 
restore  the  party's  old  economic  principles  to  their  para- 
mount place  in  politics,  retained  and  even  increased  the 
Democratic  vote. 

The"  seeds  of  the  disruption  of  1860  were  thus  planted 
in  the  opposite  views  with  which  the  two  sections  of  the 
party  won  the  overwhelming  victory  of  1852. 

The  mistaken  policy  of  1844  still  held  the  party  in  its 
grip,  and  its  inevitable  but  unforeseen  consequences 
began  to  unfold  more  rapidly.  If  a  strict  construction 
of  the  Constitution  required  that  the  status  of  slavery  in 
the  new  Territories  should  be  decided  by  the  people  of 
those  Territories,  and  not  by  Congress,1  surely  this  prin- 
ciple was  equally  applicable  to  all  the  Territories,  and  the 
action  of  Congress  in  1820  in  forever  excluding  slavery 
from  the  Territories  north  of  the  Missouri  Compromise 
line  *  was  unconstitutional  and  void. 

The  immediate  consequence  was  that  the  Territories 
north  of  the  Missouri  Compromise  line  which  were  organ- 
ized in  1854  were  organized  with  the  proviso  that  all 

1  See  Popular  Sovereignty.  9See  Compromises,  IV. 


198  The  Slavery  Controversy 

questions  pertaining  to  slavery  therein  were  to  be  left  to 
the  decision  of  the  people  residing  in  them.1  But  this 
was  no  quieting  of  the  slavery  question,  no  return  to 
economic  principles ;  it  was  only  the  evident  precursor  of 
a  still  greater  prominence  to  the  slavery  question  in  the 
future. 

The  consequent  dissatisfaction  began  to  show  most 
plainly  in  the  congressional  elections  of  1854  in  the 
Northern  agricultural  States,  Maine,  New  Hampshire, 
Pennsylvania,  New  Jersey,  Ohio,  Iowa,  Illinois,  Indiana, 
Michigan,  and  Wisconsin.  In  1850  these  States  had 
chosen  55  Democratic  representatives  to  33  opposition; 
in  1852,  61  Democrats  to  28  opposition;  in  1854,  17 
Democrats  to  72  opposition.  Not  one  of  these  States 
had  cast  an  anti-Democratic  electoral  vote  since  1840, 
with  the  exceptions  of  Ohio  in  1844,  Pennsylvania  in 
1848,  and  New  Jersey  in  1844  and  1848.  In  New  York 
the  party  had  also  been  completely  wrecked,  but  its 
misfortune  there  was  inextricably  complicated  with 
internal  Democratic  dissensions.  The  Southern  repre- 
sentatives were  unanimous  on  the  great  question,  52 
being  Democrats  and  37  pro-slavery  Whigs  or  Know- 
Nothings. 

The  party  was  evidently  making  up  its  Northern  defec- 
tions by  Southern  Whig  accessions;  and  their  influence 
upon  the  party  is  further  marked  by  a  revival  of  the 
question  of  internal  improvements.11  A  bill  for  that 
object  was  passed  in  1855,  but  vetoed  by  the  President. 

June  2,  1856,  the  national  convention  met  at  Cincin- 
nati. On  the  first  ballot  Buchanan  had  135  votes,  Pierce 
122,  Douglas  33,  and  Cass  5.  Cass's  vote  did  not  change 
materially,  but  Pierce's  vote  fell  and  those  of  Buchanan 
and  Douglas  rose,  until,  on  the  sixteenth  ballot,  Buchanan 
had  1 68  votes,  Douglas  121,  and  Cass  6.  On  the  next 
ballot  Buchanan  was  unanimously  nominated  for  the 

1  See  Kansas-Nebraska  Bill.  *  See  Construction. 


Political  Parties,  1824-1876          199 

Presidency.  Breckinridge  was  unanimously  nominated 
for  the  Vice-Presidency  on  the  second  ballot. 

The  platform  was  a  renewal  of  that  of  1852,  which 
included  the  orginal  platform  of  1840,  with  additional 
resolutions  approving  the  Kansas- Nebraska  Bill  and  the 
principle  of  popular  sovereignty,  and  condemning  the 
Know-Nothing  movement.1 

In  the  presidential  election  the  Democratic  candidates 
were  successful,  but  the  vote  was  of  evil  omen  for  the 
party.  The  cloud  in  the  West  had  grown  larger  and 
more  threatening.  In  that  section  only  Illinois  and  In- 
diana were  now  Democratic,  the  former  by  a  plurality  of 
nine  thousand  and  the  latter  by  a  meagre  majority  of  two 
thousand;  and  these  States,  with  California,  Pennsyl- 
vania, New  Jersey,  and  the  entire  South,  made  up  the 
Democratic  electoral  vote. 

Nor  were  the  congressional  elections  much  more  cheer- 
ing. In  both  branches  Congress  was  Democratic;  but 
the  majority  in  the  House  was  only  attained  by  the 
almost  complete  unification  of  the  ninety-six  Southern 
votes,  and  by  an  increase  from  six  to  fifteen  in  the  Demo- 
cratic representation  from  Pennsylvania.  In  the  other 
States  specified  under  the  immediately  preceding  elec- 
tions there  was  no  sign  of  a  return  to  the  party ;  indeed, 
five  of  them  now  sent  unanimous  anti-Democratic 
representations. 

If  the  slavery  question  could  now  have  been  inter- 
mitted, and  if  the  party  could  have  reverted  to  its  founda- 
tion principles,  its  agricultural  losses  might  possibly  have 
been  regained;  but  it  had  now  entered  the  rapids,  and 
the  falls  were  not  far  below. 

At  the  opening  of  Buchanan's  administration,  in  March, 
1857,  tne  struggle  between  free-  State  and  slave-State 
settlers  for  the  possession  of  Kansas  had  gone  far  enough 
to  show  that  the  Northern  Democratic  idea  of  popular 

1  See  American  Party. 


200  The  Slavery  Controversy 

sovereignty  in  the  Territories  was  of  no  use  to  the  South 
in  view  of  the  superior  Northern  power  in  immigration, 
and  the  whole  body  of  Southern  Democrats  soon  swerved 
off  to  the  extremely  loose  construction  ground,  formerly 
held  by  Calhoun,  that  slaves  were  recognized  as  property 
in  the  Constitution,  and  that  Congress  was  bound  to  pro- 
tect property  in  slaves  in  the  Territories,  even  against  the 
wish  of  a  majority  of  their  people. 

This  construction,  though  indorsed  by  the  decision  of 
the  Supreme  Court  in  the  Dred  Scott  case,  was  evidently 
one  which  would  be  extremely  distasteful  to  the  Northern 
Democrats,  and  which,  if  made  a  party  tenet,  would  still 
further  reduce  the  Northern  Democratic  vote.  The 
Northern  section  of  the  party  had  acquiesced  in  Texas 
annexation  in  1844,  in  the  Fugitive  Slave  Law  and  the 
abandonment  of  the  Wilmot  Proviso  in  1850,  and  in  the 
application  of  popular  sovereignty  to  all  the  Territories 
in  1854;  but  it  was  not  to  be  expected  that  in  1857  it 
should  confess  its  own  dogma  of  popular  sovereignty 
in  the  Territories  to  be  worthless,  and  preach  the  direct 
opposite. 

Accordingly  we  find  Douglas  and  a  part  of  the  already 
small  Northern  Democratic  representation  in  Congress  in 
opposition  to  the  Administration  on  this  single  question. 
Their  scission  took  the  form  of  opposition  to  the  ad- 
mission of  Kansas  under  the  pro-slavery  Lecompton 
constitution  in  1858,  and  they  were  therefore  known  as 
"Anti-Lecompton  Democrats";  but  the  real  line  of 
demarcation  lay  further  down  and  was  to  widen  into  a 
complete  division  in  1860,  In  the  Senate  Douglas  was 
almost  the  only  anti-Lecompton  Democrat,  and  in  this 
body  Jefferson  Davis,  February  2,  1860,  introduced  a 
series  of  seven  resolutions,  which  were  debated  until  May 
24th,  and  then  passed. 

Of  these  the  most  important  was  the  fourth,  which  de- 
clared that  neither  Congress  nor  a  territorial  legislature 


Political  Parties,  1824-1876          201 

had  power,  directly  or  indirectly,  to  impair  the  right  to 
hold  slaves  in  the  Territories.  The  vote  on  this  resolu- 
tion was  35  to  21 ;  28  of  the  majority  from  the  South, 
and  7  Northern  Democrats ;  20  of  the  minority  Republi- 
cans, and  one  Northern  Democrat.  The  introduction 
of  these  resolutions  seems  to  have  been  intended  as  the 
ultimatum  of  the  Southern  wing  to  the  Democratic  party's 
national  convention. 

The  national  convention  met  April  23,  1860,  at  Charles- 
ton, S.  C.,  and  on  the  next  day  elected  Caleb  Gushing 
president  and  appointed  a  platform  committee  of  one 
from  each  State.  It  was  also  agreed  that  np  ballot  should 
be  taken  for  candidates  until  the  platform  should  be 
agreed  upon.  April  2/th,  three  platforms  were  reported 
by  portions  of  the  committee,  one,  which  may  be  called 
the  Southern  platform,  by  seventeen  members ;  another, 
the  Douglas  platform,  by  fifteen  members  (representing 
all  the  free  States  but  California,  Oregon,  and  Massachu- 
setts); and  another,  the  Butler  platform,  by  one  member, 
B.  F.  Butler,  of  Massachusetts. 

As  finally  modified  in  debate,  the  Southern  platform 
contained  seven,  and  the  Douglas  platform  six,  resolu- 
tions. The  3d,  4th,  5th,  and  6th  Douglas  resolutions 
were  the  6th,  /th,  4th,  and  5th  of  the  Southern  resolu- 
tions, and  included  promise  of  protection  to  citizens  at 
home  and  abroad,  approval  of  a  Pacific  railroad  and  the 
acquisition  of  Cuba,  and  condemnation  of  any  attempt  to 
defeat  the  execution  of  the  Fugitive  Slave  Law.1 

The  first  three  Southern  resolutions  were,  in  brief:  I, 
That  slavery  in  a  Territory  could  not  be  prohibited  by 
Congress  or  by  a  territorial  legislature;  2,  that  the  Fed- 
eral Government  was  bound  to  protect  slave  owners  in 
their  property  in  slaves  in  the  Territories;  and  3,  that  the 
right  of  the  people  to  decide  the  question  of  slavery  could 
only  accrue  when  the  Territory  became  a  State;  while 

1  See  Personal  Liberty  Laws. 


202  The  Slavery  Controversy 

the  first  two  Douglas  resolutions  declared,  i,  that  the 
Democratic  doctrines  of  past  years  were  "unchangeable," 
but  2,  "that  the  Democratic  party  will  abide  by  the  de- 
cisions of  the  Supreme  Court  of  the  United  States  on  the 
questions  of  constitutional  law." 

The  issue  between  the  Northern  and  Southern  Democ- 
racy could  hardly  be  more  comprehensible  or  more 
cleanly  cut.  The  Southern  delegates  were  no  longer 
Democratic ;  they  were  pro-slavery.  The  Northern  dele- 
gates, while  not  yielding  their  popular  sovereignty  prin- 
ciple in  terms,  would  yield  to  the  Dred  Scott  decision. 
But  this  was  not  acceptable  to  Southern  delegates ;  they 
wished  to  bind  the  party  to  the  Dred  Scott  principle  for 
all  time  to  come,  no  matter  how  the  composition  of  the 
Supreme  Court  might  be  affected  by  any  future  successes 
of  the  Republican  party. 

The  Butler  proposition,  to  simply  re-affirm  the  platform 
of  1856,  was  voted  down,  April  30,  by  198  to  105.  The 
Douglas  platform  was  then  adopted  by  a  vote  of  165  to 
138.  The  majority  was  a  free-State  vote  with  a  few  scat- 
tering votes  from  the  border  States.  The  minority  was 
the  slave-State  vote,  with  California,  Oregon,  a  majority 
of  Pennsylvania,  and  a  minority  of  Massachusetts  and 
New  Jersey. 

The  vote  was  followed,  on  this  and  the  following  day, 
by  the  formal  withdrawal  of  the  delegates  from  Alabama, 
Mississippi,  Louisiana,  South  Carolina,  Florida,  Texas, 
Arkansas,  Georgia,  and  two  delegates  from  Delaware ;  all 
these  delegates  united  in  a  separate  convention.  The 
original  convention  then  adopted  the  two-thirds  rule,  and 
proceeded  to  ballot.  On  the  first  ballot  the  vote  stood  : 
Douglas,  145^;  R.  M.  T.  Hunter,  of  Virginia,  42;  James 
Guthrie,  of  Kentucky,  35 ;  Andrew  Johnson,  of  Tennes- 
see, 12;  and  18  scattering. 

The  question  now  lay  mainly,  therefore,  between  a 
Northern  or  a  border-State  candidate.  On  the  fifty- 


Political  Parties,  1824-1876          203 

seventh  ballot,  Douglas  had  151^  votes,  Guthrie  65 J, 
Hunter  16,  and  19  were  scattering.  The  convention 
then  adjourned,  May  3d,  to  meet  again  at  Baltimore, 
June  1 8th,  recommending  the  various  States  to  fill  vacan- 
cies in  the  meantime. 

When  the  convention  again  met,  June  i8th,  its  first 
business  was  to  decide  upon  the  claims  of  new  delegates 
to  admission.  From  some  of  the  States  whose  delegates 
had  withdrawn  at  Charleston  contesting  delegations  were 
present,  and  the  Douglas  majority,  by  generally  admit- 
ting Douglas  delegations,  particularly  from  Louisiana  and 
Alabama,  induced  a  further  disruption  of  the  convention, 
this  time  on  the  part  of  the  border  State  delegates.  The 
Virginia,  Tennessee,  North  Carolina,  California,  and  Dela- 
ware delegations,  with  part  of  the  Maryland,  Kentucky, 
Missouri,  and  Massachusetts  delegations,  withdrew  from 
the  convention,  and  its  president,  Gushing,  resigned. 

There  were  thus  left  in  the  convention  but  seventeen 
border  State  votes,  and  fifteen  Southern  votes  (Alabama 
and  Louisiana).  A  new  president  was  at  once  elected 
and  balloting  was  renewed.  On  the  fifty-eighth  ballot 
(fifty-seven  ballots  having  been  taken  at  Charleston), 
Douglas  had  173^  votes,  Guthrie  10,  Breckinridge  5,  and 
3  scattering;  on  the  fifty-ninth  ballot,  Douglas  had  i8i£, 
Breckinridge  7^,  and  Guthrie  5^.  On  neither  ballot  did 
Douglas  have  two  thirds  of  the  original  or  full  vote  of 
the  convention  (303  votes),  but  the  convention  now  re- 
solved that,  having  two  thirds  of  its  present  strength,  he 
was  nominated.  Benjamin  Fitzpatrick,  of  Alabama,  was 
nominated  for  the  Vice-Presidency  by  198^  votes  to  I ; 
and,  as  he  declined  the  nomination,  the  national  commit- 
tee nominated  Herschel  V.  Johnson.  The  convention 
finally  adjourned  June  22d. 

The  seceders  at  Charleston  had  at  once  organized  a 
separate  convention,  adopted  the  Southern  platform, 
and  adjourned  to  meet  in  Richmond,  June  nth.  In 


204  The  Slavery  Controversy 

Richmond  they  continued  to  meet  and  adjourn  without 
doing  business  until  the  29th.  In  the  meantime  the  seced- 
ers  at  Baltimore  organized  a  separate  convention,  June 
28th,  with  Caleb  Gushing  as  president,  and  admitted  the 
delegates  whom  the  Douglas  convention  had  excluded, 
including  some  of  the  delegates  at  Richmond.  By  unan- 
imous votes  on  the  first  ballot  in  each  instance,  they 
adopted  the  Southern  platform,  and  nominated  John  C. 
Breckinridge  for  President  and  Joseph  Lane  for  Vice- 
President.  Their  action  in  every  respect  was  ratified  by 
the  fragment  of  the  Charleston  seceders  still  in  session  at 
Richmond.  Both  bodies  then  adjourned,  and  the  Charles- 
ton convention,  in  all  its  branches,  was  over. 

The  charge  has  been  made,  and  supported  by  consider- 
able concurrent  testimony,  that  the  withdrawals  from 
the  convention,  at  Charleston,  if  not  at  Baltimore,  were 
part  of  a  concerted  design  to  split  the  party,  insure  the 
election  of  a  Republican  President,  and  thus  gain  an 
excuse  for  secession.  Such  a  design  was  very  possibly 
active  in  the  minds  of  some  of  the  extreme  Southern  fac- 
tion, but  the  disruption  itself  was  most  certainly  the 
natural  outcome  of  the  party's  history  for  sixteen  years. 

The  Southern  leaders  had  found  their  Mexican  acquisi- 
tion and  their  fundamental  party  principles  too  heavy  a 
load  to  be  carried  together  and  had  therefore  discarded 
the  latter;  the  Northern  leaders,  who  had  seen  their  party 
in  the  North  growing  weaker  for  eight  years  while  assist- 
ing in  slavery  extension  by  strict  construction,  saw  that 
they  would  be  committing  political  suicide  by  following 
in  the  proposed  new  step  of  loose  construction,  and  they 
therefore  at  last,  and  with  an  obstinacy  born  of  personal 
peril,  held  back. 

The  sectional  division  between  the  two  factions  may 
be  seen  by  an  analysis  of  the  Democratic  popular  vote  in 
1860.  In  the  (afterward)  seceding  States,  including  Ten- 
nessee, the  vote  stood:  Douglas,  72,084;  Breckinridge, 


Political  Parties,  1824-1876          205 

435,392;  in  the  other  border  States,  Douglas,  91,441; 
Breckinridge,  134,289;  in  the  North,  Douglas,  1,211,632  ; 
Breckinridge,  275,092 — (213,205  of  this  credited  to  the 
two  States  of  Pennsylvania  and  California).  All  the  elec- 
toral votes  of  the  slave  States  were  cast  for  Breckinridge, 
except  those  of  Kentucky,  Tennessee,  and  Virginia, 
which  were  given  to  Bell,1  and  those  of  Missouri,  which 
were  given  to  Douglas.  With  the  exception  of  three 
votes  in  New  Jersey,  where  a  fusion  ticket  of  electors 
was  supported  by  all  the  anti-Republican  factions,  and 
three  Douglas  electors  were  successful,  no  Northern 
electoral  votes  were  given  to  either  of  the  Democratic 
candidates. 

It  would  have  been,  therefore,  impossible  for  the 
Democratic  party,  even  without  the  disruption  of  the 
Charleston  convention,  to  have  carried  the  election  of 
1860,  for  the  adoption  of  the  Southern  platform  could 
not  have  made  the  Southern  vote  more  effective,  and 
would  certainly,  even  if  accompanied  by  Douglas's  nom- 
ination, have  still  further  diminished  the  Northern  vote." 

THE  REPUBLICAN  PARTY  was  the  name,  i,  of  the  or- 
iginal Democratic  party,3  and,  2,  of  the  most  powerful  op- 
ponent of  the  Democratic  party,  after  1854.  In  the  latter 
case,  it  seems  to  have  been  assumed,  in  great  measure,  for 
the  purpose  of  making  use  of  the  still  lingering  reverence 
for  the  name  in  the  Northern  States ;  and  yet  it  seems 
far  more  appropriate  to  its  modern  than  to  its  original 
claimant. 

The  original  Republicans  looked  upon  the  Union  as  a 
democracy,  whose  constituent  units  were  not  persons, 
but  States;  and,  hence,  the  name  Democratic  party, 
which  they  finally  accepted  almost  to  the  exclusion  of 
the  name  Republican,  was  their  proper  title. 

1  See  Constitutional  Union  Party.  *  See  Republican  Party. 

3  See  Democratic  Party,  I. 


2o6  The  Slavery  Controversy 

The  modern  Republicans  looked  upon  the  Union  as  a 
republic  of  itself,  apart  from  all  the  States,  and  able  to 
assert  the  integrity  of  its  territory  against  any  of  the 
States ;  and  though,  like  every  other  American  minority, 
they  were  ready  upon  occasion  to  assert  the  sovereignty 
of  the  States,1  their  essential  characteristic  was  that  belief 
in  the  political  existence  of  the  nation  which  has  con- 
trolled their  whole  party  history,  and  given  them  their 
claim  to  the  name  Republican. 

From  1854  until  1861  the  party  was  engaged  in  oppos- 
ing the  extension  of  slavery  to  the  Territories.  Since 
1861  it  has  controlled  the  National  Government,  except 
for  eight  years,  and  has  been  successful  in  maintaining 
the  power  of  the  nation  to  suppress  resistance  to  the  laws, 
even  when  marshalled  under  State  authority ;  to  establish 
and  control  a  system  of  national  banks ;  to  compel  indi- 
viduals to  contribute  money  and  military  service  to 
national  defence  in  time  of  war,  the  former  by  the  issue 
of  legal-tender  paper  money,  the  latter  by  drafts;  to 
abolish  slavery ;  to  reconstruct  the  governments  of  seced- 
ing States;  to  maintain  and  defend  the  security  of  the 
emancipated  race  against  State  laws;  to  regulate  those 
State  elections  which  directly  influence  the  National  Gov- 
ernment; and  to  suppress  polygamy  in  the  Territories. 
No  other  political  party  has,  therefore,  exerted  so  enor- 
mous an  influence  upon  the  essential  nature  of  the  Gov- 
ernment in  so  short  a  time. 

But  one  party,  the  Democratic,  emerged  unbroken, 
and  even  increased,  from  the  storm  which  was  settled  by 
the  Compromise  of  1850.  For  the  next  five  years  there 
were  only  feeble  and  discordant  efforts  to  oppose  it, 
by  the  Free-Soilers  on  the  slavery  question,  by  the 
Whigs  on  economic  issues,  and  by  the  Know-Nothings 
on  the  question  of  suffrage. 

The  dominant  party  itself  struck  the  sudden  and  sharp 

1  See  State  Sovereignty,  Personal  Liberty  Laws. 


Political  Parties,  1824-1876          207 

blow  which,  in  1854,  crystallized  the  jarring  elements  of 
opposition  into  a  single  party.  The  passage  of  the 
Kansas-Nebraska  Bill  (see  that  title),  not  imperatively 
demanded  by  the  Southern  Democracy,  a  quixotic  ad- 
herence to  party  dogma  by  the  Northern  Democracy, 
only  served  to  rouse  a  general  alarm  throughout  the 
North.  The  summer  and  autumn  of  1854  became  an  era 
of  coalitions  in  most  of  the  Northern  States;  and  the  re- 
sult of  the  congressional  elections  of  that  year  was  that 
the  "anti-Nebraska  men, "as  the  coalitionists  were  called, 
obtained  a  plurality  in  the  House  over  the  Democrats 
and  the  distinct  Know-Nothings,  and  elected  the  Speaker. 
A  few  members,  elected  as  anti-Nebraska  men,  turned 
out  to  be  consistent  Know-Nothings;  the  remainder, 
however,  still  controlled  the  House. 

The  elements  which  went  to  make  up  the  new  party 
were  very  various  and  numerous. 

1.  Its  immediate  ancestor  was  the   Free-Soil   party, 
which  joined  it  bodily.     Of  its  first  leaders,  Hale,  Julian, 
Chase,  C.  F.  Adams,  Sumner,  Wilmot,  F.  P.  Blair,  and 
Preston  King  of  New  York  were  of  this  class.      Many  of 
these,  like  Chase,   were  naturally  Democrats,  but  had 
been  forced  into  opposition  to  their  party  by  its  unneces- 
sary deference  to  the  feelings  of  its  Southern  wing. 

2.  But  these  alone  could  not  have  formed  the  basis  of 
a  new  party.     This  was  supplied  by  former  Whigs,  either 
originally  anti-slavery,  or  forced   into  that  attitude  by 
the  Compromise  of  1850.     Of  this  class,  Lincoln,  Seward, 
Greeley,  Fessenden,  Thaddeus  Stevens,  Sherman,  Day- 
ton, Corwin  of   Ohio,  and   Collamer  of  Vermont   were 
fair   examples.     This   element,    being   much   the   more 
numerous  and  influential,  controlled  the  policy  of   the 
new  party  on  other  points  than  slavery,  and  made  it  a 
broad-construction    party,  inclined  toward  a  protective 
tariff,  internal   improvements,  and   government  control 
over  banking. 


208  The  Slavery  Controversy 

3.  Much  less  numerous  was  the  class  which,  originally 
Whig  or   Democratic,   had  at  first  entered   the   Know- 
Nothing  organization,  but  drifted  into  the  new  party  as 
the  struggle  against  slavery  grew  hotter.     Of  this  class, 
Wilson,  Banks,  Burlingame,  Colfax,  and  Henry  Winter 
Davis   were  examples,  though  some  of  them  had  been 
Free-Soilers  as  well  as  Know-Nothings. 

4.  In,  but  not  of,  the  new  party,    were  the  original 
Abolitionists,  led  by  Giddings  and  Lovejoy  in  Congress, 
and  Garrison  and  Wendell  Phillips  out  of  Congress.   These 
were  the  guerillas  of  the  party,  for  whose  utterances  it 
did  not  hold  itself  responsible,  and  who  were  yet  always 
leading  it  into  a  stronger  opposition  to  slavery. 

5.  A  fifth  class,  not  so  numerous  as  the  second,  but 
fully  as  important   from  a  party  point   of  view,    came 
directly  from  the  Democratic  party,   Hamlin,  Cameron 
of  Pennsylvania,  Trumbull  of  Illinois,  Doolittle  of  Wis- 
consin, Montgomery  Blair,  Wm.  C.  Bryant  of  New  York, 
and   Gideon    Welles    of    Connecticut,    being   examples. 
These,  and  the  rank  and  file  represented  by  them,  brought 
into  the  new  party  that  feeling  of  dependence  upon  the 
people,  and  of  consideration  for  the  feelings,  and  even 
the  prejudices,  of  the  people,  which  the  Whig  party  had 
always  lacked.     They  made  the  new  party  a   popular 
party,  as  the  original  Democrats  had  made  the  original 
Republicans  a  popular  party. 

6.  Last,  and  generally  temporary  in  their  connection, 
were  the  "war  Democrats,"  who  united  with  the  Repub- 
licans during  the  war  of  the  Rebellion,  such  as  Andrew 
Johnson,    B.   F.    Butler,    Stanton,    Holt   of   Kentucky, 
McClernand  and  Logan  of  Illinois,  and  Dix,  Dickinson, 
Lyman  Tremain,  Cochrane,  and   Sickles  of  New  York. 
Many  of  these  dropped  out  again  after  the  end  of  the 
Rebellion;  though  some,  as  Butler,  Stanton,  and  Logan, 
were  more  permanent  in  their  connection. 

The  unification  of  all  these  elements  was  evidently  a 


Political  Parties,  1824-1876          209 

difficult  and  delicate  operation,  and  was  only  made  pos- 
sible by  the  transcendent  interest  in  the  restriction  of 
slavery ;  but  the  fortunate  adoption  of  the  name  Repub- 
lican, endeared  by  tradition  to  former  Democrats,  and 
not  at  all  objectionable  to  former  Whigs,  aided  materially 
in  the  work. 

Wilson  states  that  this  name  was  settled  upon  by  a 
meeting  of  some  thirty  members  of  the  House,  on  the 
day  after  the  passage  of  the  Kansas-Nebraska  Bill,  that 
is,  May  23,  1854;  and  that  the  leader  of  the  meeting, 
Israel  Washburn,  of  Maine,  began  using  the  term  imme- 
diately as  a  party  name.  Another  contemporaneous 
movement  was  in  Ripon,  Wisconsin,  where  the  name 
was  suggested  at  a  coalition  meeting,  March  20,  1854, 
and  formally  adopted  at  the  State  convention  in  July. 
The  first  official  adoption  of  the  name  is  believed  to  have 
been  at  the  convention  at  Jackson,  Michigan,  July  6, 
1854.  During  this  and  the  next  month  it  was  also 
adopted  by  State  conventions  in  Maine,  Ohio,  Indiana, 
Illinois,  and  Iowa,  and  may  be  considered  as  fairly  estab- 
lished, though  it  was  not  recognized  in  Congress  until  the 
beginning  of  the  next  year. 

In  its  first  year  of  existence  the  new  party  obtained 
popular  majorities  in  fifteen  of  the  thirty-one  States,  and 
elected  eleven  United  States  Senators  and  a  plurality  of 
the  House  of  Representatives.  But  these  successes  were 
mainly  in  the  West ;  the  Eastern  States,  and  particularly 
New  England,  resisted  the  entrance  of  the  new  party  with 
tenacity,  and  kept  up  the  Whig  and  Know-Nothing 
organizations  through  the  presidential  election  of  1856. 
In  December,  1855,  tne  State  committees  of  Ohio, 
Massachusetts,  Pennsylvania,  Vermont,  Wisconsin,  and 
Michigan  issued  a  call  for  a  convention  at  Pittsburg, 
February  22,  1856,  to  complete  a  national  organization. 
This  step  was  sufficient  to  show  that  the  new  party 
contained  an  element  which  distinguished  it  from  the 


VOL.    II. 14. 


210  The  Slavery  Controversy 

Whig  party.  This  convention  selected  a  national  com- 
mittee, and  called  a  national  convention  at  Philadelphia, 
June  i /th. 

When  this  convention  met,  it  was  found  to  be  a  free- 
State  body,  with  the  exception  of  delegations  from  Dela- 
ware, Maryland,  and  Kentucky.  The  platform  adopted 
declared  the  party  opposed  to  the  repeal  of  the  Missouri 
Compromise,  to  the  extension  of  slavery  to  free  territory, 
and  to  the  refusal  to  admit  Kansas  as  a  free  State ;  it  de- 
clared that  the  power  of  Congress  over  the  national  terri- 
tory was  sovereign,  and  should  be  exerted  ''to  prohibit  in 
the  Territories  those  twin  relics  of  barbarism,  polygamy 
and  slavery";  it  denounced  the  Ostend  Manifesto  (see 
that  title) ;  and  declared  in  favor  of  a  Pacific  railroad,  and 
of  "appropriations  by  Congress  for  the  improvement  of 
rivers  and  harbors  of  a  national  character."  Nothing 
was  said  of  the  tariff.  On  the  first  ballot  for  a  candidate 
for  President,  Fremont  had  359  votes,  McLean  196, 
Sumner  2,  and  Seward  I ;  and  on  the  second  ballot  Fr£- 
mont  was  nominated  unanimously.  On  the  informal 
ballot  for  a  candidate  for  Vice-President,  Dayton  re- 
ceived 259  votes,  Lincoln  no,  Banks,  46,  Wilmot  43, 
Sumner  35,  and  53  were  scattering;  and  on  the  formal 
ballot  Dayton  was  unanimously  nominated. 

Fremont's  nomination  was  intended  to  gratify  the  Free- 
Soil  and  Democratic  elements  of  the  party,  to  provide  a 
popular  rallying  cry,  "Free  soil,  free  speech,  free  men, 
and  Fremont,"  to  present  a  candidate  free  from  antago- 
nisms on  the  slavery  question,  and  thus  to  win  votes  on 
all  sides.  Dayton's  nomination  was  the  Whig  share  of 
the  result.  Fremont  was  defeated,  but  his  defeat  was  a 
narrow  one,  and  the  votes  of  Illinois  and  Pennsylvania 
would  have  made  him  President.  It  is  noteworthy  that 
in  1860  provision  was  made  for  carrying  both  these  States, 
the  former  by  Lincoln's  nomination,  and  the  latter  by  a 
protective  tariff  clause  in  the  platform. 


Political  Parties,  1824-1876          211 

The  election  of  1856  ended  the  party's  first  flood  tide. 
The  congressional  elections  of  that  year  were  so  far  un- 
favorable that  there  were  but  92  Republicans  out  of  237 
members  in  the  Congress  of  1857-9.  ^n  tne  development 
of  a  separate  organization  the  coalition  had  sloughed  off 
all  its  doubtful  members,  and  had  become  fairly  com- 
pacted and  complete.  Before  the  next  congressional 
elections  the  disruption  of  the  Know-Nothing  organiza- 
tion in  the  Northern  States,  the  decision  in  the  Dred 
Scott  case  (see  that  title),  and  the.  Lecompton  Bill,  gave 
it  recruits  enough  to  more  than  balance  its  losses. 

When  the  Congress  of  1859  met,  the  "black  Republican 
party"  had  become,  to  Southern  politicians,  a  portentous 
cloud  covering  all  the  Northern  sky.  In  the  Senate  it 
now  had  twenty-five  members  to  thirty-eight  Democrats; 
and  not  only  were  the  re-elections  of  the  few  Northern 
Democratic  Senators  very  doubtful,  but  new  Republican 
States  were  almost  ready  to  demand  admission.  In  the 
House  all  the  Northern  members  were  Republicans,  ex- 
cept two  from  California,  five  from  Illinois,  three  from 
Indiana,  one  from  Michigan,  four  from  New  York,  six 
from  Ohio,  three  from  Pennsylvania,  and  one  each  from 
Oregon  and  Wisconsin,  and  eight  anti-Lecompton  Demo- 
crats, who  were  certain  to  vote  against  the  Southern 
claims  to  the  Territories. 

Party  contest  in  Congress  at  once  assumed  a  virulence 
which  it  had  not  before  been  subject  to.  In  both  Houses 
the  Republicans  were  charged  with  complicity  in  the 
Harper's  Ferry  rising,  and  in  the  publication  of  Helper's 
Impending  Crisis,  a  recently  published  Abolitionist  book. 
In  the  House,  candidates  for  Speaker  were  nominated  by 
the  Republicans  (113  in  number),  the  Democrats  (93), 
the  anti-Lecompton  Democrats  (8),  and  the  "Ameri- 
cans," or  Know-Nothings  (23).  For  eight  weeks  no 
candidate  could  command  a  majority.  The  opposition 
to  the  Republicans  could  not  be  completely  united  in 


212  The  Slavery  Controversy 

voting  for  any  candidate,  or  in  voting  that  any  member 
who  had  indorsed  Helper's  book,  as  most  of  the  Repub- 
lican members  had  done,  was  "not  fit  to  be  Speaker  of 
this  House."  Finally,  the  original  Republican  candidate, 
Sherman,  having  been  withdrawn,  and  Pennington  of 
New  Jersey,  having  been  substituted,  he  was  elected, 
February  i,  1860,  by  the  aid  of  a  few  "American"  votes. 
But,  despite  the  Speaker's  election,  the  Republicans  had 
no  control  of  legislation,  with  the  exception  of  the 
passage  of  a  homestead  bill,  which  was  vetoed  by  the 
President. 

~  When  the  national  convention  met  at  Chicago,  May 
1 6,  1860,  the  hopes  of  the  party  were  high,  its  organiza- 
tion complete,  and  its  character  for  the  future  determined. 
Its  elements  had  been  so  welded  together  that  the  division 
lines  had  almost  disappeared ;  but  so  far  as  it  remained, 
it  was  certain  that  the  old  Whig  element  would  now  take 
the  leading  nomination  and  control  the  general  policy  of 
the  party,  while  the  old  Democratic  element  would  be 
content  with  the  second  nomination  and  the  comfortable 
consciousness  of  familiar  methods  in  party  management. 
The  delegates  were  from  the  free  States,  with  the  excep- 
tion of  the  delegates  from  Delaware,  Maryland,  Virginia, 
and  Kentucky,  and  a  fraudulent  delegation  from  Texas. 
The  platform  was  much  like  that  of  1856,  except  that 
the  conjunction  of  polygamy  and  slavery,  peculiarly  ex- 
asperating to  the  South,  was  dropped ;  a  homestead  law, 
and  protection  .for  domestic  manufactures  in  arranging 
the  tariff,  were  demanded;  and  Democratic  threats  of 
secession  and  disunion  were  denounced.  For  the  first 
place  on  the  ticket,  Seward  was  strongly  supported,  and 
he  was  as  strongly  opposed,  for  the  assigned  reason  that 
his  anti-slavery  struggle  had  made  him  an  unavailable 
candidate ;  but  much  of  the  opposition  to  him  came  from 
the  mysterious  ramifications  of  factions  in  New  York. 
On  the  first  ballot,  Seward  had  173^  votes,  Lincoln  102, 


Political  Parties,  1824-1876          213 

Cameron  50^,  Chase  49,  Bates  48,  and  42  were  scattering ; 
on  the  second,  Seward  184^,  Lincoln  181,  Chase  42^,  Bates 
35,  and  22  were  scattering;  and  on  the  third,  Lincoln 
231^,  Seward  180,  and  53^  were  scattering.  Before  an-  » 
other  ballot  could  be  taken,  votes  were  so  changed  as  to 
give  Lincoln  354  votes,  and  he  was  nominated.  For  Vice- 
President,  on  the  first  ballot,  Hamlin  had  194  votes,  C.  M. 
Clay  ioi£,  and  165 1  were  scattering;  on  the  second,  Ham- 
lin had  367  votes  to  99  for  others,  and  was  nominated. 

In  the  campaign  which  followed,  the  party  employed 
popular  methods  still  more  effectively  than  in  1856. 
With  the  exception  of  the  ignominious  success  of  1840, 
no  previous  party  had  met  the  Democratic  party  on  its 
own  ground.  No  appeal  that  could  be  made  to  the 
attention  of  the  people  was  neglected ;  monster  wigwams, 
and  long  processions  of  "wide-awakes"  with  torches,  j 
transparencies,  and  music,  attracted  listeners  to  the  po- 
litical speeches ;  and  for  these  the  party  could  now  com- 
mand at  least  as  high  an  order  of  ability  as  its  opponents. 
Its  candidates  obtained  the  votes  of  all  the  free  States, 
except  three  from  New  Jersey,  and  were  elected.  From" 
this  time  the  work  of  the  party  for  the  next  four  years  is 
told  elsewhere.1 

No  dominant  party  ever  passed  through  such  a  try- 
ing experience  as  did  the  Republican  party  during  the 
Rebellion.  Its  majority  in  Congress  was  only  due  to 
the  absence  of  Southern  Representatives;  and,  even 
with  this  aid,  its  majority  in  the  House  was  hardly 
preserved  in  the  Congress  of  1863-5.  Nevertheless  the 
management  of  the  party  was  generally  wise  and  success- 
ful. The  extreme  anti-slavery  element  was  held  in  check ; 
and,  to  secure  the  co-operation  of  the  small  but  essential 
percentage  of  "  war  Democrats,"  the  name  "  Union 
party"  was  adopted,  and  other  measures  of  conciliation 
were  contrived. 

1  See  articles  referred  to  under  Rebellion. 


214  The  Slavery  Controversy 

Lincoln,  in  particular,  was  obnoxious  both  to  the  ex- 
treme radicals,  who  disliked  his  temporizing  policy,  and 
to  the  more  timid  members  of  the  party,  who  feared  the 
effects  of  his  Emancipation  Proclamation.  Efforts  were 
made  to  obtain  the  nomination  of  Chase,  partly  as  a 
vindication  of  the  "one-term  policy,"  partly  as  a  rebuke 
of  "presidential  patronage,"  and  partly  to  secure  a  more 
careful  management  of  the  currency ;  but  the  Republican 
members  of  the  Ohio  Legislature  declared  for  Lincoln's 
renomination,  and  this  seems  to  have  ended  the  Chase 
movement. 

A  more  turbulent  but  less  formidable  reaction  was  a 
convention  of  "radical  men"  at  Cleveland,  May  31,  1864, 
which  nominated  Fremont  and  John  Cochrane  of  New 
York,  and  demanded  a  more  vigorous  prosecution  of  the 
war,  the  confiscation  of  the  estates  of  rebels,  and  their 
distribution  among  soldiers  and  actual  settlers.  The  can- 
didates accepted  the  nominations,  but  withdrew  before 
the  election. 

In  the  mass  of  the  party  there  was  no  hesitation. 
When  the  "Union  national  convention"  met  at  Balti- 
more, June  7,  1864,  Lincoln  was  renominated  by  ac- 
clamation after  an  informal  ballot  of  492  votes  for  him 
and  22  for  Grant.  To  conciliate  the  war  Democrats,  one_ 
of  their  number  was  to  be  nominated  for  Vice-President, 
and  the  choice  lay  between  Andrew  Johnson  and  Daniel 
S.  Dickinson  of  New  York.  On  the  first  ballot  Johnson 
had  200  votes,  Hamlin  145,  and  Dickinson  113 ;  but  votes 
were  at  once  changed  to  Johnson,  and  his  nomination 
was  made  unanimous.  The  platform  approved  the  un- 
conditional prosecution  of  the  war,  the  acts  and  pro- 
clamations aimed  at  slavery,  the  proposed  Thirteenth 
Amendment  abolishing  slavery,  the  policy  of  President 
Lincoln,  the  construction  of  the  Pacific  railroad,  the  re- 
demption of  the  public  debt,  and  the  enforcement  of  the 
Monroe  doctrine  in  Mexico. 


Political  Parties,  1824-1876          215 

For  a  little  space  during  the  summer  the  constant  slight 
checks  to  the  national  armies  threw  a  cloud  over  the  pro- 
spects of  Republican  success;  but  before  the  election  a 
general  and  triumphant  forward  movement  of  the  army 
and  navy  made  Lincoln's  election  a  certainty,  and  the 
war  closed  with  the  Republican  party  at  its  very  high 
tide  of  success,  triumphant  and  united. 

And  yet,  immediately  after  the  close  of  the  Rebellion, 
the  party  was  to  undergo  a  more  severe,  because  more 
insidious,  test  of  its  steadiness.  A  succession  of  exciting 
events — the  assassination  of  President  Lincoln,  the  offer 
of  rewards  for  the  chiefs  of  the  Confederacy  and  their 
hurried  flight  toward  the  seacoast,  the  long  funeral  of  the 
dead  President,  and  the  trial  of  the  conspirators  in  the 
assassination — appealed  directly  to  the  wild  justice  of 
revenge ;  and  the  appeal  was  to  be  resisted,  if  at  all,  by 
Republican  equilibrium  of  mind,  for  the  opposition  was 
almost  silenced  for  the  time.  It  is  fair  to  say  that  the 
test  was  endured  successfully,  and  that  there  was  no 
general  desire  for  sweeping  vengeance  upon  the  con- 
quered. Men  rather  felt  a  strong  sense  of  relief  when 
the  excitement  subsided,  business  was  allowed  to  take  its 
wonted  course  again,  and  political  problems  were  re- 
manded to  the  Federal  Government  for  consideration. 

This  sense  of  relief  was  not  to  be  permanent.  Congress 
was  not  in  session  until  December,  1865,  and  in  the 
meantime  the  President  actively  began  his  policy  of  re- 
construction.1 Every  new  expression  of  Southern  satis- 
faction with  "the  President's  policy"  was  a  fresh  stimulus 
to  suspicion  in  the  minds  of  men  who  had  for  four  years 
been  engaged  in  suppressing  a  Southern  rebellion ;  but  it 
was  not  until  after  the  meeting  of  Congress  that  the  Re- 
publicans were  fully  aroused  to  the  disadvantages,  and 
the  opposition  to  the  advantages,  of  the  succession  of  a 
war  Democrat  to  President  Lincoln's  place. 

1  See  Reconstruction,  I. 


216  The  Slavery  Controversy 

There  were  no  important  elections  in  1865,  and  in  those 
which  were  held  the  Republicans  were  everywhere  suc- 
cessful. The  resolutions  of  their  State  conventions  were 
evidently  guarded  in  language;  expressed  approval  of 
the  President's  policy  so  far  as  it  had  been  developed; 
but  demanded  "the  most  substantial  guarantees  by  Con- 
gress" of  the  safety  and  rights  of  the  Southern  negroes 
before  the  seceding  States  should  be  admitted  to  repre- 
sentation. In  other  words,  the  party  was  not  disposed 
to  a  conflict  with  the  President,  but  would  keep  its  goods 
as  a  strong  man  armed:  it  would  not  object  to  his  recon- 
struction of  the  State  governments,  if  he  would  not  object 
to  the  passage  by  Congress  of  such  acts  as  the  Civil  Rights 
Bill  and  the  Freedmen's  Bureau  Bill  (see  those  titles) ;  but, 
at  the  first  sign  of  bad  faith  in  the  President,  it  would 
strike  at  him  and  his  policy  with  all  its  energy,  through 
Congress. 

It  is  evident  now  that  this  was  the  universal  and  de- 
liberately formed  programme  of  the  party,  and  that  the 
party  was  not  forced  into  it  by  ultra  leaders.  These,  on 
the  contrary,  were  steadily  held  in  check  during  the  ses- 
sion of  1865-6,  until  the  veto  of  the  Civil  Rights  Bill 
showed  the  President's  intention  to  insist  on  the  admis- 
sion of  the  seceding  States  to  representation  without 
"substantial  guarantees."  Even  then  the  party  majority 
in  Congress  were  content  with  the  passage  over  the  veto 
of  the  two  bills  named  above,  and  the  passage  of  the 
Fourteenth  Amendment,  as  a  base  of  future  operations ; 
they  then  adjourned  and  left  the  issue  between  them- 
selves and  the  President  to  the  decision  of  the  party. 

The  decision  was  promptly  given.  The  Republican 
State  conventions  in  Illinois,  Indiana,  Iowa,  Kansas, 
Maine,  Massachusetts,  Michigan,  Minnesota,  New  York, 
Ohio,  and  Pennsylvania  pronounced  against  the  Presi- 
dent's policy,  and  declared  that  reconstruction  must  be 
effected  by  "the  law-making  power  of  the  Government." 


Political  Parties,  1824-1876          217 

The  other  Republican  States  were  mainly  silent  because 
no  State  conventions  were  held ;  in  not  one  of  them  was 
the  President's  policy  approved.  On  the  contrary,  the 
approval  came  from  the  Democratic  party,  whose  leaders 
united  with  the  President's  Republican  and  war  Demo- 
cratic supporters  in  a  national  convention  at  Philadelphia, 
August  14,  1866,  commonly  called  the  "arm-in-arm  con- 
vention," from  the  manner  in  which  the  Massachusetts 
and  South  Carolina  delegates  entered  it.  In  some  States, 
as  in  Connecticut,  the  Federal  office-holders  openly  sup- 
ported the  Democratic  candidates,  with  the  formal  ap- 
proval of  the  President,  but  the  intact  and  vigorous 
Republican  organizations  were  successful. 

The  result  of  the  elections  of  1866  left  every  State 
north  of  Mason  and  Dixon's  line  with  a  strong  Republi- 
can majority  in  the  legislature,  and  a  Republican  gover- 
nor. Still  more  important,  they  gave  the  Republicans 
in  the  next  Congress  an  unequivocal  majority  of  all  its 
members:  42  to  n  in  the  Senate,  and  143  to  49  in  the 
House.  If  all  the  Southern  States  had  been  represented 
by  Democrats,  the  Republican  majority  would  still  have 
been  42  to  33  in  the  Senate,  and  143  to  99  in  the  House; 
until  the  Southern  States  were  represented,  the  Republi- 
can majority  was  sufficient  to  override  the  President's 
veto  in  every  case,  and  Congress  could  shape  legislation 
at  its  will  for  two  years  to  come. 

The  Republican  National  Committee  expelled  its  presi- 
dent, Henry  J.  Raymond  of  New  York,  and  two  of  its 
members,  who  had  taken  sides  with  the  President,  and 
war  was  fairly  declared.  The  President's  utter  want  of 
tact  and  discretion  undoubtedly  made  the  Republican 
victory  over  him  easier,  but  it  would  probably  have  been 
nearly  as  complete  in  any  event.  His  obstinate  refusal 
to  make  any  terms  only  resulted  in  making  the  terms  ac- 
corded to  the  seceding  States  more  severe,  and  the 
work  of  reconstruction  was  carried  out  by  Congress  with 


218  The  Slavery  Controversy 

hardly  any  thought  of  the  President,  except  as  an 
obstructive.1 

It  has  been  said  that  the  party  forced  its  congressional 
majority  into  reconstruction,  and  was  not  forced  into  it 
by  its  ultra  leaders.  Nevertheless,  it  is  certain  that  these 
leaders,  during  the  struggle,  used  the  President's  denun- 
ciations of  Congress  to  carry  counteraction  unnecessarily 
far.  The  President  had  used  without  scruple  his  powers 
of  appointment  and  removal  to  reward  his  friends  and 
punish  his  enemies ;  and  the  civil  service  was  thus  made 
an  instrument  of  offence  against  the  dominant  party. 
The  course  of  events  is  elsewhere  detailed.2  How  far  the 
impeachment  was  desired  by  the  mass  of  the  party  can 
hardly  be  known.  The  ensuing  national  convention  pro- 
nounced the  President  to  have  "been  justly  impeached 
for  high  crimes  and  misdemeanors,  and  properly  pro- 
nounced guilty  thereof  by  the  votes  of  thirty-five 
Senators";  but  it  is  still  a  question  whether  the  party 
generally  felt  more  regret  or  relief  at  the  failure  of  the 
impeachment. 

The  national  convention  at  Chicago,  May  20,  1868, 
fully  approved  the  reconstruction  policy  of  Congress; 
declared  that  the  public  faith  should  be  kept  as  to  the 
national  debt,  not  only  according  to  the  letter,  but  ac- 
cording to  the  spirit  of  the  laws  by  which  it  was  con- 
tracted, but  that  the  rate  of  interest  should  be  reduced 
whenever  it  could  be  done  honestly ;  and  condemned  the 
acts  of  President  Johnson  in  detail.  Nothing  was  said  of 
the  tariff.  For  President,  Grant  was  unanimously  nomi- 
nated on  the  first  ballot.  For  Vice- President,  the  struggle 
was  mainly  between  Wade,  Colfax,  Wilson,  and  Fenton 
of  New  York.  On  the  first  ballot,  Wade  had  149  votes, 
Fenton  132,  Wilson  119,  Colfax  118,  and  all  others  124. 
On  the  fifth  ballot,  Colfax  had  224  votes,  Wade  196, 

1  See  Reconstruction,  I. 

8  See  Tenure  of  Office  ;  Impeachments,  VI. 


Political  Parties,  1824-1876          219 

Fenton  137,  Wilson  61,  and  all  others  32.  So  many 
votes  were  then  changed  to  Colfax  that  he  had  541  to 
109  for  all  others,  and  was  nominated.  The  candidates 
were  elected  without  special  difficulty.1 

With  Grant's  election  the  party  may  at  last  be 
considered  homogeneous  and  self-existent,  with  no 
trace  of  borrowed  traditions.  Distinctions  within  the 
party,  arising  from  former  political  affiliations,  had  dis- 
appeared. Those  who  still  felt  their  influence,  like 
Seward,  Chase,  Welles,  Trumbull,  and  Doolittle,  had 
generally  dropped  out  during  the  reconstruction  and  im- 
peachment struggles ;  and  a  new  generation,  not  only  of 
voters,  but  of  leaders,  had  arisen,  who  knew  only  the 
tenets  of  the  party,  and  were  not  embarrassed  by  former 
Whig,  Democratic,  Free-Soil,  or  Know-Nothing  bias. 
Among  these  new  men  were  Morton,  Elaine,  Garfield, 
Conkling,  Sherman,  Schurz,  Edmunds  of  Vermont,  Dawes 
and  Hoar  of  Massachusetts,  Morgan  of  New  York,  Frel- 
inghuysen  of  New  Jersey,  Kelley  of  Pennsylvania, 
Bingham,  Shellabarger,  Ashley,  and  Schenck  of  Ohio, 
Chandler  and  Ferry  of  Michigan,  Carpenter  of  Wiscon- 
sin, and  Yates  and  Washburne  of  Illinois.  These,  and 
a  host  of  others,  while  they  had  practically  ousted  the 
original  leaders,  retained  the  peculiar  combination  of 
Whig  principles  and  Democratic  methods  which  had  re- 
sulted from  the  original  amalgamation,  and  were  now  to 
show  whether  they  could  make  the  party  a  popular 
broad-construction  party  in  internal  administration,  as 
well  as  in  the  suppression  of  slavery. 

The  first  problem  which  they  were  to  meet  was  the 
condition  of  the  Southern  States.  The  grant  of  the  right 
of  suffrage  to  the  recently  enfranchised  negroes  had  been 
completed  by  the  process  of  reconstruction.  If  it  was 
to  be  maintained,  it  must  be  by  the  vigor  of  the  negroes 
themselves  in  defending  it,  by  Federal  support  to  the 

'  See  Electoral  Votes,  XXI. 


220  The  Slavery  Controversy 

reconstructed  State  governments  in  defending  it,  or  by  a 
constitutional  amendment  authorizing  negroes  to  defend 
it.  The  first  method  was  impracticable ;  if  it  had  been 
otherwise,  it  would  itself  have  been  a  full  vindication  of 
the  educp';ng  influences  of  the  system  of  slavery.  The 
second  method  was  adopted  by  legislation  and  executive 
action ' ;  and  the  third  by  the  passage  of  the  Fifteenth 
Amendment. 

In  both  these  methods  the  party  was  practically  unan- 
imous at  first ;  but,  as  the  difficulties  of  their  execution 
increased,  those  who  still  retained  anything  of  former 
party  bias  were  the  first  to  grow  weary  of  them.  In 
addition  to  this,  there  was  very  much  of  the  natural 
repugnance  to  the  control  of  the  party  machinery  by  new 
leaders.  The  result  was  the  "Liberal  Republican  bolt" 
of  1870-2,*  in  which  the  singular-spectacle  was  presented 
of  the  party  contending  against  an  opposition  led  by  the 
two  great  towers  of  its  strength  in  1854-5,  Sumner  and 
Greeley.  Indeed,  the  contest  may  almost  be  described 
as  one  between  the  mass  of  the  party,  under  its  new 
leaders,  and  the  remnants  of  those  who  had  entered  the 
party  from  former  organ;zations ;  and  the  result  was 
decisive  of  the  party's  integral  consolidation. 

The  national  convention  met  at  Philadelphia,  June  5, 
1872.  Its  platform  reviewed  the  past  achievements  of 
the  party;  demanded  the  maintenance  of  "complete 
liberty  and  exact  equality  in  the  enjoyment  of  all  civil, 
political,  and  public  rights  throughout  the  Union"  ;  com- 
mended Congress  and  the  President  for  their  suppression 
of  Ku-Klux  disorders;  and  promised  to  adjust  the  tariff 
duties  so  as  "to  aid  in  securing  remunerative  wages  to 
labor,  and  promote  the  growth,  industries,  and  prosperity 
of  the  whole  country."  This  latter  paragraph  was  the 
first  official  announcement  of  protectionist  doctrines  since 
1860,  but  its  place  had  always  been  effectually  filled  by 

1  Ku-Klux  Klan.  3  See  Liberal  Republican  Party. 


Political  Parties,  1824-1876          221 

the  resolutions  of  State  conventions,  and  by  the  consist 
ent  policy  of  the  party  in  Congress.  For  President,  Grant 
was  renominated  by  acclamation.  For  Vice-President, 
Wilson  was  nominated  by  364^  votes  to  321  £  for  Colfax. 
The  candidates  were  elected  with  even  less  difficulty  than 
in  1868. 

Nevertheless,  there  was  still  considerable  dissatisfaction 
in  the  party.  The  close  of  Grant's  first  term  and  the  be- 
ginning of  his  second  were  marked  by  a  succession  of 
public  scandals,  arising  mainly  from  his  own  inexperi- 
ence in  civil  administration  and  the  derelictions  of  many 
of  his  appointees.  The  consequent  dissatisfaction  was 
shown  by  a  general  defeat  of  the  party  in  the  State  and 
congressional  elections  of  1874-5.'  ^  was  checked,  how- 
ever, immediately,  and  the  check  has  often  been  ascribed 
to  the  political  skill  of  the  leaders  in  "waving  the  bloody 
shirt,"  that  is,  in  stimulating  a  desire  for  the  formation 
of  a  solid  North  to  counterbalance  the  solid  South  formed 
by  the  violent  suppression  of  the  colored  vote.  But  a 
more  rational  commendation  of  their  political  skill  may 
be  found  in  the  manner  in  which  they  committed  their 
party  to  the  payment  of  the  public  debt  in  coin.  The 
issue  of  legal-tender  paper  money  had  been  a  Republican 
war  measure,  but  the  idea  had  since  grown  up  that  at 
least  a  part  of  the  public  debt  should  be  paid  in  paper 
money.3  In  most  of  the  Western  States  this  idea  had 
completely  gained  control  of  the  Democratic  party;  it 
had  made  a  smaller,  but  very  considerable,  progress  in 
the  Republican  party;  and  many  of  the  subordinate 
Republican  politicians  were  inclined  to  look  upon  it  as 
inevitable,  and  yield  to  it.  So  prominent  a  leader  as 
Morton  publicly  yielded,  and  fathered  the  "rag-baby," 
as  the  paper-money  idea  was  popularly  called.  To  dis- 
own that  which  seemed  at  first  sight  their  own  progeny, 
to  hazard  the  party's  supremacy  in  its  original  habitat, 

1  See  Democratic  Party,  VI.  2  See  Greenback-Labor  Party. 


222  The  Slavery  Controversy 

the  northwest,  certainly  required  no  small  amount  of 
political  foresight,  nerve,  and  skill  in  the  Republican  lead- 
ers. Ohio  was  made  the  battle  ground  and  the  gauntlet 
was  thrown  down  in  1875.  Success  there  was  followed 
by  the  nomination  of  the  successful  candidate  for  Presi- 
dent in  1876,  and  the  committal  of  the  party  to  specie 
resumption  in  1879.  A  conflict  of  this  nature  did  more 
to  bring  back  the  liberals  of  1872,  and  the  dissatisfied 
voters  of  1874,  than  even  the  "bloody  shirt"  could  do 
in  repelling  them. 

The  national  convention  met  at  Cincinnati,  June  14, 
1876.  The  platform  differed  from  that  of  1872  mainly 
in  its  stronger  indorsement  of  civil  service  reform ;  in  its 
demand  for  "a  continuous  and  steady  progress  to  specie 
payments";  in  its  denunciation  of  polygamy  in  the  Ter- 
ritories, of  "a  united  South,"  and  of  the  Democratic 
party  in  general;  and  in  its  declaration  in  favor  of  "the 
immediate  and  vigorous  exercise  of  all  the  constitutional 
powers  of  the  President  and  Congress  for  removing  any 
just  causes  of  discontent  on  the  part  of  any  class,  and  for 
securing  to  every  American  citizen  complete  liberty  and 
exact  equality." 

Much  apprehension  had  been  expressed  as  to  President 
Grant's  supposed  intention  to  use  the  party  machinery  to 
compass  his  own  nomination  for  a  third  term,  but  when 
the  convention  met  he  was  not  a  candidate.  The  leading 
candidates  were  Conkling  and  Morton,  representing  the 
adherents  of  the  administration;  Bristow,  representing 
the  opposition  to  the  administration ;  and  Elaine,  with  a 
positive  strength  of  his  own,  independent  of  all  Southern 
questions.  On  the  first  ballot,  Blaine  had  285  votes, 
Morton  124,  Bristow  113,  Conkling  99,  Hayes  61,  and  all 
others  72.  On  the  sixth  ballot,  Blaine  had  308  votes, 
Hayes  113,  Bristow  m,  Morton  85,  Conkling  81,  and  all 
others  56.  On  the  seventh  ballot,  there  was  a  general 
break.  Of  Bristow's  votes,  21  adhered  to  him;  Elaine's 


Political  Parties,  1824-1876          223 

vote  rose  to  351;  the  adherents  of  all  the  other  candidates 
transferred  their  votes  to  Hayes,  and  he  was  nominated 
by  384  votes  out  of  756.  For  Vice-President,  Wheeler 
had  hardly  any  opposition.  The  candidates  were 
elected,  but  only  after  a  struggle  which  is  elsewhere 
detailed. 

The  discovery  of  the  "cipher  telegrams"  helped  very 
materially  to  reconcile  the  party  to  the  irregularities  of 
the  election  of  1876.  Nevertheless,  the  new  President 
was  left  with  very  little  party  support  until  the  extra  ses- 
sion of  1879.  During  this  administration,  for  the  first 
time  in  the  party's  history,  the  leaders  failed  to  control 
its  Representatives  in  Congress.  Resumption  of  specie 
payments  had  been  fixed  for  January  i,  1879.  But,  since 
1870,  silver  had  been  steadily  falling,  in  relative  value  to 
gold,  throughout  the  civilized  world.  The  act  of  Febru- 
ary 12,  1873,  had  demonetized  silver,  and  had  made  gold 
the  only  specie  of  the  country,  except  for  subsidiary 
coinage.  The  public  debt  would  thus  have  been  payable 
in  gold  alone.  The  idea  at  once  spread  that  this  action 
was  a  fraudulent  effort  to  pay  bondholders  more  than 
they  were  entitled  to  by  law. 

Both  of  the  great  parties  yielded  to  the  storm.  After 
several  unsuccessful  efforts,  the  Bland  bill,  to  make  the 
silver  dollar  (then  worth  about  ninety-two  cents)  a  legal 
tender  for  public  and  private  debts,  and  to  direct  its 
coinage  at  the  rate  of  not  less  then  $2,000,000,  nor  more 
than  $4,000,000,  per  month,  passed  both  Houses.  It 
was  vetoed,  and  passed  over  the  veto  by  heavy  majori- 
ties, February  28,  1878.  In  both  Houses  the  leaders  of 
the  party  voted  in  the  negative,  but  the  mass  were  either 
absent  or  in  the  affirmative. 

The  national  convention  met  at  Chicago,  June  10, 
1880.  As  Grant  had  been  out  of  office  for  four  years, 
his  nomination  was  now  considered  unexceptionable  by 
many,  and  a  plurality  of  the  delegates  came  to  the 


224  The  Slavery  Controversy 

convention  pledged  to  vote  for  him.1  Elaine  was  next 
to  him  in  strength,  and  Sherman,  the  Secretary  of  the 
Treasury,  next.  On  the  first  ballot,  Grant  had  304 
votes,  Elaine  284,  Sherman  93,  Edmunds  34,  Washburne 
of  Illinois  30,  and  Windom  of  Minnesota  10.  For  thirty- 
five  ballots  this  proportionate  vote  was  hardly  changed, 
except  that  on  the  thirty-fifth  ballot,  Grant's  vote  rose 
to  313,  and  Elaine's  fell  to  257.  Garfield,  a  Sherman 
delegate  from  Ohio,  had  been  steadily  voted  for  by  one 
or  two  delegates,  since  the  second  ballot.  On  the  thirty- 
fourth  ballot  the  Wisconsin  delegation,  against  his  pro- 
test, gave  him  17  votes;  on  the  thirty-fifth  his  vote  rose 
to  50;  and  on  the  thirty-sixth,  by  a  sudden  stampede  of 
all  the  anti-Grant  elements,  he  was  nominated  by  a  vote 
of  399,  to  307  for  Grant,  42  for  Elaine,  5  for  Washburne, 
and  3  for  Sherman.  Arthur,  to  placate  the  Grant  dele- 
gates, was  nominated  for  Vice-President  on  the  first 
ballot,  by  468  votes,  to  193  for  Washburne,  and  90  for 
all  others. 

The  result  of  the  election  seems  to  show  a  very  con- 
siderable party  advantage  in  a  policy  of  devotion  to 
economic  principles.  In  1876,  after  eight  years  of  a 
vigorous  repressive  policy  in  Southern  disorders,  the  Re- 
publican candidates  were  only  successful  by  a  single  elec- 
toral vote,  and  the  honesty  of  the  success  was  denied  by 
the  whole  opposition  party.  In  1880,  after  four  years 
of  simple  endeavor  to  settle  the  economic  problems  which 
pressed  for  settlement,  the  party's  candidates  were  elected 
beyond  cavil,  by  214  electoral  votes  to  155.  And  further, 
a  forged  letter  (the  so-called  Morey  letter)  appeared  just 
before  the  election,  purporting  to  come  from  Garfield, 
and  advising  the  encouragement  of  Chinese  immigration 
in  order  to  bring  American  servants  and  mechanics  to  a 
more  manageable  condition.  This  forgery  undoubtedly 
cost  Garfield  the  five  votes  of  California,  the  three  votes 

1  See  Nominating  Conventions. 


Political  Parties,  1824-1876          225 

of  Nevada,  and  probably  the  nine  votes  of  New  Jersey. 
Without  it,  the  result  would  have  been  231  to  135,  and 
the  party  would  have  had  the  entire  Northern  and  West- 
ern vote,  for  the  first  time  in  its  history.  It  is  also  note- 
worthy that  the  prospects  of  possible  Republican  success 
in  Southern  States,  without  Federal  coercion,  date  wholly 
from  Hayes's  administration. 

CONSTRUCTION. — As  we  approach  the  study  of  the 
Whig  party,  which  is  generally  looked  upon  as  the  lineal 
descendant  of  the  Federalist  party,  it  seems  proper  to 
consider  the  subject  of  construction.  These  two  parties 
have  made  the  construction  of  the  Constitution  an  im- 
portant divisive  issue  in  politics.  In  a  country  where 
manhood  suffrage  is  the  rule,  a  written  constitution 
would  seem  to  be  a  necessity,  for  the  purpose  of  securing 
those  guarantees  against  the  tyranny  of  a  majority  which 
are  attained  in  Great  Britain  by  limited  suffrage,  property 
representation,  and  Crown  influence.  In  Great  Britain, 
therefore,  the  constitution  is  unwritten,  and  practically 
is  changed  at  the  will  of  Parliament ;  in  the  United  States 
the  Constitution  is  written,  and  is  changed  either  directly, 
though  with  great  difficulty,  by  amendments,  or  indi- 
rectly and  even  more  slowly  by  a  stricter  or  broader 
construction,  or  interpretation,  of  its  provisions.  On 
this  fundamental  question  of  a  strict  or  a  broad  construc- 
tion of  the  Constitution,  all  legitimate  national  party 
differences  in  the  United  States  are  and  always  have 
been  based;  and  all  efforts  to  establish  national  parties 
without  reference  to  it  have  proved  failures.1 

/.  Strict  Construction  is  the  outcome  of  the  particular- 
ist  element  of  American  politics.  It  is  not  based,  how- 
ever, upon  any  particular  affection  for  the  States  as 
States,  or  upon  any  opposition  to  the  Federal  Govern- 
ment; these  are  its  effects,  not  its  causes.  Its  roots 

1  See  Anti-Masonry  ;  American  Party,  I.  ;  Greenback-Labor  Party. 

VOL.  II.— 15. 


226  The  Slavery  Controversy 

really  lie  in  the  inertia  of  the  mass  of  the  people,  in  their 
unwillingness  to  make  changes  at  the  demand  or  for  the 
sake  of  special  interests.  When  this  inertia  had  been  so 
far  overcome  as  to  secure  the  establishment  of  the  Con- 
stitution in  1789,'  its  next  and  natural  expression  was  the 
principle  that  the  Constitution  should  be  strictly  con- 
strued, and  this  has  always  been  the  fundamental  prin- 
ciple of  the  Democratic-Republican  party.  It  was  first 
put  into  form  by  Jefferson  and  Madison,*  and  has  since 
been  very  generally  maintained  by  their  party.  The 
most  conspicuous  instances  of  its  abandonment  have 
been  in  1844,  1858-60  (by  the  Southern  wing),  and  in 
1868.'  The  extreme  particularist  element  has  usually 
been  marked,  not  so  much  by  a  strict  construction  of  the 
Constitution,  as  by  an  exaggerated  devotion  to  the  States 
as  principals,  not  as  instruments.4 

II.  Broad  Construction,  or  Loose  Construction,  of  the 
Constitution  is  the  necessary  expression  of  the  national- 
izing, often  called  the  centralizing,  element  of  American 
politics.  Its  main  object  has  always  been  to  make  the 
Federal  Government  as  powerful  in  the  internal  adminis- 
tration of  the  whole  country  as  in  the  management  of  its 
foreign  affairs.  The  founder  of  this  school  was  Alexan- 
der Hamilton,*  whose  writings  are  still,  to  a  remarkable 
degree,  a  compendium  of  the  broad-constructionist  doc- 
trines of  succeeding  times.  The  little  that  was  lacking 
in  his  work  was  supplied  by  the  Adamses,  John  and 
John  Quincy;  and  Webster,  Story,  and  Clay  had  only 
to  complete  and  beautify  a  theory  whose  framework  had 
already  been  strongly  built.  In  the  writings  of  these  six 
men  may  be  found  all  the  essentials  of  broad  construc- 

1  See  Anti-Federal  Party. 

*  See  Bank  Controversies,  II.  ;  Kentucky  and  Virginia  Resolutions. 
3  See  Democratic  Party. 

*  See  State  Sovereignty,  Nullification,  Secession. 

*  See  Bank  Controversies,  II. 


Political  Parties,  1824-1876          227 

tion,  with  the  exception  of  that  which  was  applied  to  the 
abnormal  political  influences  of  slavery.1 

As  this  political  school  has  not  been  constant,  but  has 
been  steadily  developed,  it  follows  that  its  supporters 
have  been  compelled  to  change  their  party  name  and 
organization  as  the  successive  phases  of  their  doctrine 
have  appeared,  and  have  not  been  able  to  maintain, 
through  all  our  history,  an  identity  of  name  like  that  of 
their  conservative  opponents.  Three  successive  parties 
have  carried  out  the  ideas  which  Hamilton  first  advanced. 
The  work  of  the  Federal  party  was  mainly  to  secure  the 
existence  of  the  Federal  Government  which  it  had  called 
into  being.  The  Whig  party,  dropping  the  Federalist 
opposition  to  unlimited  suffrage,  accepted  the  mass  of 
Federalist  doctrines,  and  added  to  them  those  of  internal 
improvements  and  a  protective  tariff.  The  Republican 
party,  dropping  the  Whig  opposition  to  agitation  on  the 
slavery  question,  accepted  the  mass  of  the  Whig  doc- 
trines, and  added  to  them  those  of  the  Federal  Govern- 
ment's power  to  restrict  slavery  to  State  limits,  to  abolish 
slavery  (as  the  result  of  civil  war),  to  re-admit  seceding 
States  upon  conditions,  and  to  protect  the  slaves  when 
set  free.  It  has  also  secured  the  adoption  of  one  amend- 
ment (the  1 5th)  which  seems  to  have  opened  the  door  to 
future  political  consequences  as  yet  hardly  to  be  esti- 
mated. Like  the  opposing  school,  broad  construction 
has  also  its  evil  side;  its  extremists  have  sometimes 
shown  a  contempt  for  the  Constitution  and  its  limita- 
tions which  would,  if  it  prevailed,  reduce  the  organic  law 
to  a  nullity,  and  subject  the  whole  country  to  the  caprice 
of  a  shifting  congressional  majority. 

///.  Construction  in  General  has  always  been  "strict" 
and  "loose"  relatively,  not  absolutely.  As  broad  con- 
struction has  advanced,  strict  construction  has  advanced 
with  it  pari  passu,  so  that  much  which  is  now  taken  as 

1  See  Abolition,  II.  ;  Slavery  ;  Reconstruction. 


228  The  Slavery  Controversy 

strict  construction,  would  have  seemed  to  Jefferson,  or  to 
John  Taylor  of  Caroline,  the  loosest  possible.  The  Con- 
stitution, therefore,  even  where  it  remains  ipsissimis 
verbis,  is  in  practice  a  very  different  instrument,  in  many 
important  points,  from  that  which  it  was  in  1789.  The 
great  reason  for  change  of  construction  has,  of  course, 
always  been  necessity  or  convenience ;  but  the  immediate 
causes  are  reducible  to  three:  party  tenure  of  power, 
judicial  decisions,  and  war. 

1.  Whenever  a  broad-construction  party  has  gained  con- 
trol of  the  Government,  it  has  put  its  ideas  into  practice, 
and,  when  once  put  into  practice  and  become  familiar  to 
the  people,  some  of  these  new  constructions  have  gener- 
ally held  their  place  and  been  adopted  by  the  Democratic 
party  on  its  return  to  power  or  in  its  efforts  to  do  so. 
Thus  the  idea  of  vast  and  undefined  indirect  powers  in 
Congress  under  the  "general  welfare"  clause  of  the  Con- 
stitution (Art.   I.,  §  8)  was  adopted,   1800-12,  from  the 
overthrown  Federal  party ;  the  doctrine  of  the  power  of 
Congress  to  appropriate  the  national  funds  for  internal 
improvements  was   adopted,    1854-60,    from    the   over- 
thrown Whig  party ;  and  the  slavery  and  reconstruction 
amendments  and  legislation  were  recognized  and  adopted, 
1872-80,  in  the  effort  to  overthrow  the  Republican  party. 

2.  The  general    rule  followed   by  the  Federal  courts 
has  always  been  that  in  purely  political  questions  the 
judicial  department  must  be  governed  by  the  action  of 
the  legislative  and  executive.     This  one  rule  has  evi- 
dently left  a  clear  road  to  broad  construction  whenever 
the  legislative  and   executive  have  inclined  to  take  it. 
But,  even  in  matters  not  strictly  political,  the  general 
drift  of  the  decisions  in  United  States  courts  has  been 
toward  a  broad  construction.     Thus,  instead  of  the  car- 
dinal principle  of  the  original  Democratic  party,1  that  only 
absolutely  necessary  laws  were  within  the  power  of  Con- 

1  See  Bank  Controversies,  II. 


Political  Parties,  1824-1876          229 

gress,  the  Federal  courts  have  decided  that  Congress  may 
pass  laws  that  are  absolutely  necessary,  very  necessary, 
or  simply  necessary  in  the  judgment  of  Congress.  In  the 
same  way  many  other  powers,  which  were  once  doubtful 
or  denied,  have  since  been  settled  by  the  Federal  courts 
in  accordance  with  the  broad-construction  view.  The 
Supreme  Court  decisions  in  1879  (IO°  U.  S.),  in  their  in- 
terpretation and  application  of  the  I4th  and  i$th  amend- 
ments, show  that  this  process  has  by  no  means  stopped, 
but  is  only  entering  a  new  stage  of  development. 

3.  As  there  is  no  limit  to  the  force  which  may  be 
brought  against  a  republic  in  war,  so  there  is  practically 
no  limit  to  the  force  with  which  the  republic,  if  thor- 
oughly roused,  will  repel  it.  During  the  Revolution  the 
Continental  authorities  habitually  tampered  with  the 
mails,  arrested  and  deported,  or  summarily  executed, 
suspected  persons,  and,  wherever  necessary  or  possible, 
considered  State  laws  as  practically  suspended.  The 
Alien  and  Sedition  Laws  of  1798  were  defended  mainly 
on  the  ground  that  war  really  existed  with  France.  In 
1812- 1 6  the  extremities  to  which  the  Federal  Govern- 
ment was  often  reduced  compelled  the  strict-construction 
Democratic  party  to  resort  to  measures,  such  as  conscrip- 
tion, impressment,  naval  equipment,  disregard  of  State 
control  of  the  militia,  and  the  creation  of  a  public  debt 
and  a  national  bank,  which,  by  their  own  party  prin- 
ciples, were  either  highly  inexpedient  or  flatly  unconstitu- 
tional.1 In  1846-50,  as  the  Mexican  War  was  conducted 
outside  of  the  country,  its  effects  were  less  perceptible, 
but  the  Supreme  Court's  decisions  on  the  absolute  power 
of  the  Federal  Government  over  the  conquered  soil  of 
New  Mexico  and  California  were  important,  and  were 
afterward  used  as  precedents  in  reconstruction."  In  1861 
the  Southern  wing  of  the  strict-construction  party  not 

1  See  Drafts,  I. ;  Convention,  Hartford  ;  Bank  Controversies,  III. 

8  See  also  Territories. 


230  The  Slavery  Controversy 

only  voluntarily  abandoned  that  branch  of  the  Federal 
Government,  Congress,  of  which  it  had  undisputed  pos- 
session, to  its  broad-construction  opponents,  but  even 
strengthened  the  hands  of  its  opponents  by  making  war 
on  the  Government,  and  thus  bringing  into  play  the 
undefined  and  unlimited  war  power.  The  consequence 
has  been  the  enormous  and  now  hardly  questioned  de- 
velopment of  the  permanent  powers  of  the  Federal 
Government. 

The  above  will  make  it  evident  that  construction,  strict 
or  broad,  is  the  vis  viva  of  the  Constitution,  which  has 
enabled  it,  with  very  little  formal  change,  to  survive  "the 
pressure  of  exigencies  caused  by  an  expansion  unex- 
ampled in  point  of  prosperity  and  range."  By  its  means 
the  law-abiding  character  of  the  American  people,  and 
their  unquestioning  faith  in  their  Constitution,  have  both 
been  preserved  intact  throughout  a  vast  foreign  immigra- 
tion which  has  radically  altered  the  nature  and  blood  of 
the  people,  and  each  characteristic  has  been  able  recipro- 
cally to  act  upon  and  increase  the  other. 

See  authorities  cited  under  the  articles  above  referred  to. 

ANTI-MASONRY.  I.  Anti-Masonic  Party.  —  The  so- 
ciety of  Free  Masons  was  established  in  the  United 
States  during  the  eighteenth  century,  and  before  1820 
had  enrolled  among  its  members  very  many  of  the  politi- 
cal leaders  of  the  country.  In  1826  William  Morgan,  of 
Batavia,  Genesee  County,  New  York,  having  prepared 
a  book  for  publication  which  purported  to  expose  the 
secrets  of  the  fraternity,  was  arrested,  and  a  judgment 
obtained  against  him  for  debt.  Upon  his  release,  Sep- 
tember 1 2th,  he  was  seized  and  conveyed  in  a  close 
carriage  to  Niagara.  No  further  trace  of  the  missing 
man  was  ever  found,  in  spite  of  liberal  rewards  offered 
for  him  or  his  abductors. 

The  affair  caused  intense  excitement  throughout  West- 


Political  Parties,  1824-1876          231 

ern  New  York.  Charges  were  made  that  the  conspiracy 
to  abduct  embraced  all  the  leading  Free  Masons  of  that 
section  of  the  State;  that  these  had  systematically 
thwarted  all  investigation ;  that  members  of  the  society 
placed  their  secret  obligations  above  those  of  citizenship 
or  official  duty ;  and  that  they  were  necessarily  unfit  and 
unfaithful  public  servants. 

In  town  and  county  elections  candidates  who  refused 
to  resign  their  membership  in  the  society  soon  found  a 
strong,  though  unorganized,  anti-Masonic  vote  against 
them,  and  in  August,  1828,  the  National  Republican 
party  in  New  York  carefully  nominated  State  candidates 
who  were  not  Free  Masons.  But  an  anti-Masonic  State 
convention,  at  Utica,  a  few  days  later,  nominated  candi- 
dates pledged  against  Free  Masonry,  and  polled  33,345 
votes  out  of  a  total  of  276,583.  In  1830  they  entirely 
displaced  the  National  Republicans  in  New  York,  as  the 
opponents  of  the  Democrats,  and  as  Jackson,  the  Demo- 
cratic leader,  was  a  Free  Mason,  steps  were  taken  by  his 
opponents  to  extend  the  anti-Masonic  organization  to 
other  States,  in  hopes  of  thus  gaining  the  small  percent- 
age of  votes  necessary  to  defeat  the  Democrats  in  the 
national  election.  The  attempt  was  a  failure,  in  one 
sense,  since  the  number  of  National  Republican  Free 
Masons  who  were  alienated  to  the  democracy  more  than 
counterbalanced  the  anti-Masonic  accession;  but  it  re- 
sulted in  the  establishment  of  the  anti-Masons  as  the 
controlling  anti-Democratic  organization  in  Pennsylvania 
and  Vermont,  and  as  a  strong  local  party  in  Massachu- 
setts and  Ohio. 

In  the  State  of  New  York,  William  H.  Seward,  Millard 
Fillmore,  and  Thurlow  Weed  first  appeared  in  politics 
as  anti-Masonic  leaders. 

In  February,  1830,  a  State  convention  at  Albany  had 
decided  in  favor  of  a  national  anti-Masonic  nominating 
convention,  and  this  decision  was  confirmed  by  a  national 


232  The  Slavery  Controversy 

convention,  in  September,  1830.  John  Quincy  Adams 
had  already  lost  control  of  the  National  Republicans,  and 
Clay  had  begun  to  develop  some  of  that  popularity  with 
the  party  which  afterward  made  the  Whigs  almost  a  dis- 
tinctive Clay  party.  In  the  hope  of  forcing  Clay,  who 
was  a  Free  Mason,  out  of  the  field,  the  anti-Masons  held 
their  convention  first  of  the  parties,  at  Baltimore,  in  Sep- 
tember, 1831,  and  nominated  William  Wirt,  of  Maryland, 
and  Amos  Ellmaker,  of  Pennsylvania,  as  presidential 
candidates.  The  National  Republicans,  however,  per- 
sisted in  nominating  Clay,  and  Wirt  and  Ellmaker  re- 
ceived the  electoral  vote  of  Vermont  alone. 

The  anti-Masons  made  no  further  effort  to  act  as  a 
distinct  national  party,  and  the  rise  of  the  Whig  party 
soon  after  absorbed  their  organization,  except  in  Penn- 
sylvania, where  they  retained  existence  in  alliance  with 
the  Whigs  until  about  1840,  and  in  1835,  through  Demo- 
cratic dissensions,  succeeded  in  electing  their  candidate 
for  Governor,  Joseph  Ritner.  But  while  acting  as  a  part 
of  the  Whig  party,  the  anti-Masonic  element  was  suffi- 
ciently strong  and  distinct  to  force  the  nomination  of 
Harrison,  in  1835  and  1839,  instead  of  Clay.1 

The  anti-Masons  and  the  American  party  have  been 
the  only  instances  in  our  political  history  of  an  attempt 
to  form  a  national  political  party  not  based  on  some 
controlling  theory  as  to  the  proper  construction  of  the 
Constitution. 

2.  American  Party. — In  1868  a  national  convention,  at 
Pittsburgh,  formed  the  National  Christian  Association, 
which  has  held  annual  meetings  since.  In  1875  this  body 
began  political  action  as  the  American  party.  It  is  op- 
posed to  Free  Masonry  as  false  religion  and  as  false  poli- 
tics, and  demands  the  recognition  of  God  as  the  author 
of  civil  government,  and  the  prohibition  of  oath-bound 
secret  lodges  as  acknowledging  supreme  allegiance  to 

1  See  Whig  Party. 


Political  Parties,  1824-1876          233 

another  government  than  that  of  the  United  States.  The 
vote  of  the  party  was  in  1876  and  1880  included  in  the 
few  thousand  votes  classed  as  "scattering."  Its  news- 
paper organ  is  The  Christian  Cynosure,  published  in 
Chicago,  Illinois,  and  one  of  its  recent  leaders  is  President 
J.  Blanchard,  of  Wheaton  College,  Illinois. 

THE  WHIG  PARTY. — From  1801  until  after  .the  presi- 
dential election  of  1828  the  unity  of  the  Democratic  or 
Republican  party  was  still  nominally  unbroken.  Member- 
ship in  it  was  so  essential  to  political  advancement  that 
after  1817  all  national  opposition  to  it  came  to  an  end. 
In  1824  the  nomination  of  presidential  candidates  by  a 
congressional  caucus  was  urged  on  the  ground  that  all  the 
aspirants  belonged  to  the  same  party  ;  and,  even  through 
John  Quincy  Adams's  administration,  the  "Adams  and 
Clay  Republicans,"  who  supported  the  President,  and 
the  "Jackson  Republicans,"  who  opposed  him,  steadily 
acknowledged  each  other's  claim  to  the  party  name. 

Notwithstanding  this  superficial  unity,  there  had  long 
been  a  departure  from  the  original  Democratic  canons, 
and  a  break  in  the  dominant  party,  which  first  becomes 
plainly  visible  after  the  War  of  1812.  The  idea  that  the 
people  were  to  impose  their  notions  of  public  policy  upon 
their  rulers,  and  not  altogether  to  receive  them  from  their 
rulers,  which  the  Federalists  had  always  detested  at  heart, 
had  now  been  accepted  by  all  politicians;  but,  working 
under  this  limitation,  a  strong  section  of  the  dominant 
party  now  aimed  at  obtaining,  by  Jefferson's  methods, 
objects  entirely  foreign  to  Jefferson's  programme.  This 
was  particularly  the  case  in  the  Northern  States,  where 
commerce,  banking,  and  the  other  interests,  not  bounded 
by  State  lines,  on  which  Hamilton  had  depended  for  the 
building  up  of  nationality,  were  now  supplemented  by 
another,  manufactures,  non-existent  in  Hamilton's  time. 

All  these  looked  to  the  Republican  party  for  a  support 


234  The  Slavery  Controversy 

and  protection  which  the  laissez  faire  of  the  Jeffersonian 
theory  would  have  refused  them.  It  is,  then,  very 
significant  of  the  Republican  drift  that  banking  was  recog- 
nized by  a  national  bank  in  1816,  commerce  by  a  great 
system  of  public  improvements  in  1821,  and  manufactures 
by  a  slightly  protective  tariff  in  1816,  strengthened  in 
1824  and  1828.' 

But  this  was  the  Federalist  policy,  with  the  new  feature 
of  a  protective  tariff,  which  was  at  least  rudimentary  in 
the  Federalist  policy;  and  the  principal  difference  be- 
tween the  Federalists  and  the  Adams  Republicans  was, 
that  the  former  intended  to  be  the  guides,  and  the  latter 
the  exponents,  of  the  people  in  carrying  out  the  policy 
specified.  The  election  of  Adams  as  President  in  1824, 
with  his  appointment  of  Clay  as  Secretary  of  State,  long 
denounced  as  a  guilty  bargain,  was  really  the  organiza- 
tion of  a  party,  and  the  work  was  only  hindered  by 
Clay's  angry  denials  of  a  "bargain." 

A  frank  acknowledgment  of  party  birth,  with  the  com- 
plete formulation  of  its  principles  which  was  given  by 
President  Adams  in  his  annual  messages,  would  have 
brought  an  intelligent  support;  the  attempt  to  retain 
Jefferson's  party  name  for  the  Adams  faction  only  served 
to  call  attention  to  their  complete  departure  from  Jeffer- 
son's theory,  and  thus  repelled  every  voter  to  whom 
"Republicanism"  was  still  the  touchstone  of  politics. 

It  was  not  until  toward  the  end  of  Adams's  term  of 
office  that  any  of  his  followers  began  to  take  the  step 
which  should  have  been  taken  at  first,  and  assumed  the 
name  of  "National  Republicans."  Even  when  it  was 
assumed,  the  assumption  was  only  tentative,  and  was 
confined  to  a  few  Northern  and  Eastern  newspapers.  To 
the  mass  of  the  Adams  party  the  struggle  still  seemed  to 
be  only  one  between  two  wings  of  the  same  party,  and 
the  result  of  the  election  of  1828  showed  which  of  the 

1  See  Bank  Controversies,  III.  ;  Internal  Improvements  ;  Tariff. 


Political  Parties,  1824-1876          235 

two  seemed  the  better  "Republicans"  to  the  country  at 
large. 

Adams's  electoral  vote  was  that  of  the  old  Federal 
party,  the  vote  of  the  New  England  States,  New  Jersey 
and  Delaware,  sixteen  of  New  York's  thirty-six  votes, 
and  six  of  Maryland's  eleven  votes.  But  the  popular 
vote  showed  a  wider  strength  than  the  Federalists  had 
ever  had.  Jackson's  majority  was  but  508  out  of  8702 
votes  in  Louisiana,  a  State  whose  sugar-planting  interest 
was  always  to  incline  it  toward  a  protective  tariff;  4201 
out  of  130,993  votes  in  Ohio,  where  New  England  immi- 
gration and  ideas  were  strong;  in  North  Carolina  and  Vir- 
ginia thirty  per  cent,  of  the  popular  vote  was  for  Adams; 
and  his  total  popular  vote,  in  spite  of  the  practical  unanim- 
ity of  most  of  the  Southern  States,  was  509,097  to  647,231 
for  Jackson.  This  was  at  least  an  encouraging  growth 
for  a  party  which  as  yet  aimed  at  a  total  reversal  of  the 
Republican  policy  while  retaining  the  Republican  name. 

The  year  after  Jackson's  inauguration  was  one  of  sud- 
den political  quiet.  The  newspapers  of  the  year  were 
busied  mainly  with  internal  improvements,  the  first 
struggle  of  the  railroad  toward  existence,  and  the  growth 
of  manufactures.  It  was  not  until  the  beginning  of 
the  year  1830  that  Jackson's  drift  against  the  bank,  the 
protective  tariff,  internal  improvements,  and  the  other 
features  of  the  Adams  policy,  became  so  evident  that  his 
opponents  were  driven  into  renewed  political  activity. 

The  name  "National  Republican"  at  once  became  gen- 
eral. But  the  new  party  was  at  first  without  an  official 
leader.  In  October,  1828,  an  indiscreet  or  treacherous 
Virginia  friend  of  Adams  had  obtained  from  Jefferson's 
grandson  and  published  a  letter  from  Jefferson,  written 
three  years  before,  which  named  Adams  as  the  authority 
for  the  allegation  of  a  Federalist  secession  scheme  in 
1 808.'  Adams's  newspaper  organ,  the  National  Intelli- 

1  See  Embargo,  Secession. 


236  The  Slavery  Controversy 

gencer,  at  once  confirmed  Jefferson's  statement,  with 
some  corrections,  and  asserted  that  the  President  had 
known  in  1808,  "from  unequivocal  evidence,  although 
not  provable  in  a  court  of  law,"  that  the  Federalist  lead- 
ers aimed  at  "a  dissolution  of  the  Union  and  the  estab- 
lishment of  a  separate  confederation."  The  former 
Federalist  leaders  of  Massachusetts,  or  their  sons,  at 
once  demanded  his  evidence,  which  he  refused  to  give, 
and  the  quarrel  died  away  in  mutual  recriminations. 

Adams's  purpose  seems  to  have  been  to  emphasize  his 
own  original  "Republicanism";  but  he  only  succeeded 
in  alienating  from  himself  the  legitimate  successor  of  the 
Federal  party.  His  inability  to  see  that  he  had  created 
a  new  party  cost  him  the  party  leadership,  which  passed 
at  once  to  Henry  Clay.  Adams  was  out  of  politics,  and, 
when  he  entered  the  House  again,  in  December,  1831, 
came  as  an  anti-Masonic  representative;  Clay,  when  he 
entered  the  Senate  in  the  same  month,  came  as  the  most 
conspicuous  advocate  of  the  Adams  policy.  December 
12,  1831,  the  National  Republicans,  in  convention  at 
Baltimore,  unanimously  nominated  him  for  the  Presi- 
dency, and  John  Sergeant  for  the  Vice-Presidency. 

No  platform  was  adopted,  but  an  address  to  the  coun- 
try formulated  the  party  principles  very  distinctly  in  its 
attacks  on  Jackson's  policy.  May  /th  following,  a 
"Young  Men's  National  Republican  Convention"  met 
at  Washington,  renewed  the  nominations,  and  adopted 
ten  resolutions  indorsing  a  protective  tariff,  a  system  of 
internal  improvements,  the  decision  of  "constitutional 
questions"  by  the  Supreme  Court,  and  a  cessation  of 
removals  from  office  for  political  reasons. 

The  popular  vote  of  1832  was  proportionally  very 
similar  to  that  of  1828;  but  the  electoral  vote  was  very 
different.  Maine,  New  Hampshire,  and  New  Jersey  were 
now  Democratic;  the  "unit  system"  in  New  York  gave 
the  whole  vote  of  that  State  to  Jackson;  Vermont  gave 


Political  Parties,  1824-1876          237 

her  votes  to  the  anti-Masonic  candidates;  and  the  result 
gave  Jackson  219,  Clay  49,  and  others  18. 

Something  was  evidently  lacking.  Support  of  the 
United  States  Bank1  helped  the  party  in  the  Middle  and 
Eastern  States,  but  worked  against  it  in  the  South  and 
West.  Support  of  a  protective  tariff  helped  the  party 
in  the  Middle  and  Eastern  States,  where  manufactures 
flourished,  and  growers  of  wool,  flax,  and  hemp  desired 
a  market  in  their  own  neighborhood,  but  again  it  exerted 
an  unfavorable  influence  in  the  South  and  West. 

Too  impatient  to  trust  to  time  and  argument  for  a 
natural  increase  of  their  national  vote,  and  hardly  willing 
to  trust  to  a  general  system  of  purchase  by  "internal 
improvements"  alone,  the  National  Republicans  began, 
after  the  election  of  1832,  a  general  course  of  beating  up 
for  recruits,  regardless  of  principle,  which  was  the  bane 
of  their  party  throughout  its  whole  national  existence. 
No  delegate  could  come  amiss  to  their  conventions:  the 
original  Adams  Republican,  the  nullifier  of  South  Caro- 
lina, the  anti-Mason  of  New  York  or  Pennsylvania,  the 
State-rights  delegate  from  Georgia,  and  the  general  mass 
of  the  dissatisfied  everywhere,  could  find  a  secure  refuge 
in  conventions  which  never  asked  awkward  questions, 
which  ventured  but  twice  (in  1844  and  1852)  to  adopt  a 
platform,  and  which  ventured  but  once  (in  1844)  to  nom- 
inate for  the  Presidency  a  candidate  with  any  avowed 
political  principles. 

The  National  Republicans  formed  a  party  with  prin- 
ciples and  the  courage  to  avow  them;  their  reckless 
search  for  recruits  placed  their  principles  at  the  mercy  of 
their  new  allies,  and  the  bed  became  "shorter  than  that 
a  man  could  stretch  himself  on  it,  and  the  covering  nar- 
rower than  that  he  could  wrap  himself  in  it." 

However  heterogeneous  was  the  mass  of  dissatisfaction 
in  1833-4,  there  was  community  of  feeling  on  at  least 

1  See  Bank  Controversies,  III. 


238  The  Slavery  Controversy 

one  point,  dislike  to  the  President.  In  South  Carolina, 
nullification  (see  that  title)  had  received  its  death-blow 
from  the  President's  declared  intention  to  usurp,  as  the 
nullifiers  believed,  the  unconstitutional  power  to  make 
war  on  a  sovereign  State ;  and  the  bitterness  of  this  feel- 
ing was  aggravated  in  the  case  of  their  leader,  Calhoun, 
by  a  preliminary  personal  dispute  with  the  President. 

The  nullifiers  were  thus  ready  and  willing  to  become 
the  allies  of  the  National  Republicans ;  and  it  is  asserted 
by  Hammond  that  Clay's  compromise  tariff  of  1833, 
which  gave  the  nullifiers  a  road  of  retreat,  was  one  con- 
sideration for  the  alliance.  The  anti-Masons  of  the 
Northern  and  Eastern  States '  had  failed  to  make  any 
impression  in  the  election  of  1832,  and  in  transferring 
their  national  allegiance  it  was  easier  for  them  to  go  to 
the  National  Republicans,  whose  leader,  Clay,  had  pub- 
licly declared  that  he  had  not  attended  a  Masonic  meet- 
ing for  years,  than  to  the  Jackson  party,  whose  leader 
was  a  warm  and  avowed  Free  Mason. 

In  the  South,  particularly  in  Tennessee  and  Alabama, 
many  Democrats  disliked  Van  Buren  as  the  predestined 
successor  of  Jackson.  Their  leader  was  Hugh  L.  White, 
and,  though  his  candidacy  was  at  first  that  of  a  revolting 
Democrat,  his  supporters  soon  came  to  feel  that  they 
were  also  fighting  against  the  President  and  his  dictation 
of  his  successor.  In  Georgia,  the  State-rights,  or  Troup, 
party,  which  had  ousted  the  Indians  from  the  State,  had 
really  been  assisted  by  Jackson,  and  opposed  by  Adams, 
in  accomplishing  their  purpose.  Nevertheless,  as  a  sort 
of  connecting  link  between  the  nullifiers  and  the  White 
party,  they  became  the  anti-Jackson  party  of  their  State, 
though  their  entrance  to  the  general  alliance  was  not  per- 
fected until  1835-7. 

All  these  elements,  indeed,  remained  in  nominally 
separate  existence  throughout  the  year  1833,  though 

1  See  Anti-Masonry. 


Political  Parties,  1824-1876          239 

their  approach  was  daily  becoming  closer.  Jackson's 
removal  of  deposits  from  the  United  States  Bank,  Octo- 
ber i,  1833,  in  defiance  of  a  previous  adverse  vote  of  the 
House,1  seemed  to  the  entire  opposition  such  a  flagrant 
executive  usurpation  of  power  as  could  not  escape  popu- 
lar condemnation,  and  the  National  Republican  leaders 
seized  upon  it  as  an  opportunity  for  cementing  their  new 
alliances. 

The  task  seemed  difficult,  in  view  of  the  radically  dif- 
ferent political  beliefs  of  the  two  leading  elements  of  the 
alliance,  and  it  was  only  made  possible  by  the  personal 
character  of  the  opposition  to  Jackson,  and  by  the  politi- 
cal tact  of  James  Watson  Webb,  of  New  York,  in  finding 
an  available  party  name.  His  newspaper,  the  Courier 
and  Enquirer,  had  originally  supported  Jackson,  and  had 
been  driven  into  the  opposition  by  the  President's  course. 
In  February,  1834,  he  baptized  the  new  party  with  the 
name  of  "Whig,"  with  the  idea  that  the  name  implied 
resistance  to  executive  usurpation,  to  that  of  the  Crown 
in  England  and  in  the  American  Revolution,  and  to  that 
of  the  President  in  the  United  States  of  1834. 

In  reality,  the  objects  of  the  name  were  to  oppose  a 
verbal  juggle  to  the  verbal  juggle  of  the  opposite  party, 
to  balance  the  popular  name  of  Republican  or  Democrat 
by  the  popular  name  of  Whig,  and  to  give  an  apparent 
unity  of  sentiment  to  fundamental  disagreement.  In  all 
these  it  was  successful.  The  name  "took."  Within  six 
months  the  anti-Masons  and  National  Republicans  had 
ceased  to  be,  and  the  Whigs  had  taken  their  places.  In 
the  South  the  change  was  slower.  It  was  not  until  after 
the  election  of  1836,  in  which  White  was  unsuccessful, 
that  the  White  and  Troup  parties  fairly  took  the  name 
of  Whigs;  and  in  South  Carolina  the  nullifiers  in  general 
never  claimed  the  name,  and  at  the  most  only  allowed 
Whigs  elsewhere  to  claim  them  as  members  of  the  party. 

1  See  Deposits,  Removal  of. 


240  The  Slavery  Controversy 

In  1836  the  party  was  entirely  unprepared  for  a  presi- 
dential contest.  Harrison  was  nominated  for  the  Presi- 
dency, as  a  "people's  candidate,"  by  a  great  number  of 
mass  meetings  of  all  parties,  and,  in  December,  1835,  by 
Whig  and  anti-Masonic  State  conventions  at  Harrisburg, 
and  by  a  Whig  State  convention  at  Baltimore,  the  former 
naming  Granger  and  the  latter  Tyler  for  the  Vice-Presi- 
dency. Harrison's  politics  were  of  a  Democratic  cast, 
but  he  satisfied  the  Whig  requisite  of  opposition  to  the 
President,  while  he  satisfied  the  anti- Masonic  element 
still  better  by  declaring  that  "neither  myself  nor  any 
member  of  my  family  have  ever  been  members"  of  the 
Masonic  order. 

Webster  was  nominated  in  January,  1835,  by  the  Whig 
members  of  the  Massachusetts  Legislature,  but  he  found 
little  hearty  support  outside  of  his  State.  White  had 
now  gone  so  far  in  opposition  that  copies  of  the  official 
Washington  Globe,  containing  bitter  attacks  upon  him, 
were  franked  to  the  members  of  the  Tennessee  Legisla- 
ture by  the  President  in  person. 

The  Legislature,  however,  in  October,  1835,  unani- 
mously re-elected  White  Senator,  and  by  a  vote  of  60  to 
12  nominated  him  for  the  Presidency.  Soon  afterward, 
the  Alabama  Legislature,  which  had  already  nominated 
White,  rescinded  the  nomination,  having  become  Demo- 
cratic. The  South  Carolina  element,  having  control  of 
the  Legislature,  by  which  electors  were  to  be  appointed, 
made  no  nominations,  and  finally  gave  the  State's  elec- 
toral vote  to  Willie  P.  Mangum,  a  North  Carolina  Whig, 
and  John  Tyler,  a  nullifier. 

All  the  factions  of  the  opposition  thus  had  their  can- 
didates in  the  field,  and  at  first  sight  their  discordant 
efforts  might  have  seemed  hopeless.  But  all  the  politi- 
cians of  the  time  expected  a  failure  of  the  electors  to  give 
a  majority  to  any  candidate,  and  a  consequent  choice  by 
the  House  of  Representatives,  in  which  the  opposition, 


Political  Parties,  1824-1876          241 

though  in  a  numerical  minority,  hoped  to  control  a 
majority  of  States.  These  forecasts  proved  deceptive. 
Van  Buren  received  a  majority  of  the  electoral  votes,  and 
became  President. 

Van  Buren's  whole  term  of  office  was  taken  up  by  the 
panic  of  1837,  the  subsidiary  panic  of  1839,  anc^  the  estab- 
lishment of  the  Sub-Treasury  system  in  1840,  to  take  the 
place  of  the  national  bank  and  complete  a  "divorce  of 
bank  and  State."  Seldom  have  so  many  alternations  in 
political  prospects  rilled  a  Presidential  term. 

In  1837  Van  Buren  entered  office  with  an  overwhelm- 
ing electoral  majority,  and  his  opponents  prostrate  before 
him;  and  within  two  years  the  Whigs  "had  the  Loco- 
Focos  at  their  mercy."  So  poor  had  the  Administration 
grown  that  Calhoun  and  his  followers  ranged  themselves 
with  it  again,  holding  that  the  Executive  was  now  so 
weak  as  to  be  harmless,  and  that  the  real  danger  was 
from  the  Whigs.  Preston,  of  South  Carolina,  and 
John  Tyler,  were  almost  the  only  leading  nullifiers  who 
nominally  remained  Whigs.  To  balance  this,  the  White 
and  Troup  party  had  now  come  into  the  Whig  ranks, 
the  former  bringing  John  Bell  as  its  most  prominent 
leader,  and  the  latter  John  M.  Berrien,  John  Forsyth, 
Thos.  Butler  King,  Alexander  H.  Stephens,  and  Robert 
Toombs. 

Before  1840  returning  prosperity  had  changed  the 
scene.  The  Democrats  were  now  more  than  confident : 
they  predicted  the  dissolution  of  the  Whig  party,  and  de- 
clared that  they  would  be  satisfied  with  nothing  less, 
with  no  mere  victory;  and,  to  crown  the  whole,  they 
were  completely  defeated  in  the  presidential  election  of 
1840  by  the  "moribund"  Whig  party. 

In  the  accomplishment  of  this  sudden  victory,  the 
Whig  leaders  have  been  reproached  with  an  entire  sacri- 
fice of  principle  to  availability,  but  it  is  well  to  remember 
that  their  party  was  as  yet  no  complete  vessel,  but  rather 

VOL.   H.— 16. 


242  The  Slavery  Controversy 

a  raft,  composed  of  all  sorts  of  materials,  and  very  loosely 
fastened  together. 

Of  the  opposition  candidates  who  had  been  in  the  field 
in  1836  it  was  evident  that  Harrison  was  the  only  avail- 
able candidate  for  1840.  The  Whig  party  was  not 
homogeneous  enough  to  take  its  real  leader,  Clay,  or  its 
perhaps  still  better  representative,  Webster;  nor  had  it 
sunk  so  low  in  its  own  coalition  as  to  take  a  real  Democrat 
like  White.  Harrison  was  the  favorite  of  the  anti-Masonic 
element ;  his  Western  life  and  military  services  gave  him 
strength  at  the  West,  and,  in  a  less  degree,  at  the  South ; 
and  it  was  possible  in  the  North  and  East  to  keep  his 
very  doubtful  attitude  as  to  the  establishment  of  a  new 
national  bank  under  cover,  while  laying  special  stress  on 
his  determination  to  respect  the  will  of  the  people's  Re- 
presentatives in  Congress,  and  to  spare  the  veto.  This 
last  point  decided  his  nomination,  for  the  Whig  leaders 
saw  that  his  name  would  bring  votes,  while  under  cover 
of  it  the  real  contest  could  be  carried  on  for  Congress- 
men, the  actual  governing  power  under  Harrison's  pro- 
posed disuse  of  the  veto. 

And  yet  it  is  plain  now  that  the  Whig  party  was  more 
homogeneous  in  1840  than  it  thought  itself,  and  that  it 
had  a  "fighting  chance"  of  success  under  Clay.  Its 
leaders  ought  to  have  learned  this,  if  from  nothing  else, 
from  the  desperate  expedients  to  which  they  were  driven 
in  the  effort  to  dragoon  the  convention  into  nominating 
Harrison. 

And  never  was  another  convention  so  dragooned.  It 
met  at  Harrisburg,  December  4,  1839,  an(^  was  treated  as 
a  combustible  to  which  Clay's  name  might  be  the  possible 
spark.  By  successive  manoeuvres  it  was  decided  that  a 
committee  of  States  should  be  appointed;  that  ballots 
should  be  taken,  not  in  convention,  but  in  the  State  dele- 
gations; that  in  each  delegation  the  majority  of  delegates 
should  decide  the  whole  vote  of  the  State ;  that  the  re- 


Political  Parties,  1824-1876          243 

suit  of  each  ballot  should  be  reported  to  the  committee 
of  States;  and  that  this  committee  should  only  report 
to  the  convention  when  a  majority  of  the  States  had 
agreed  upon  a  candidate.  The  first  ballot  gave  Clay  103 
votes,  Harrison  94,  and  Scott  57,  and  it  was  not  until  the 
fifth  ballot  that  the  committee  of  States  was  able  to  re- 
port the  nomination  of  Harrison  by  148  votes  to  90  for 
Clay  and  16  for  Scott.  In  the  same  fashion  Tyler  was 
nominated  for  the' Vice-Presidency  on  the  following  day. 

The  "campaign  of  1840"  was  based  entirely  on  Harri- 
son's popularity  and  the  general  desire  for  a  change,  and 
under  cover  of  these  the  Whigs  carried  on  a  still  hunt  for 
Congressmen,  the  real  objects  of  the  campaign.  In  all 
points  they  were  successful.  Log  cabins  and  hard  cider, 
supposed  to  be  typical  of  Harrison's  early  life,  were  made 
leading  political  instruments;  singing  was  carried  to  an 
•extent  hitherto  unknown ;  mass  meetings  were  measured 
by  the  acre,  and  processions  by  the  league ;  and  in  No- 
vember "Tippecanoe  and  Tyler,  too,"  received  234  elec- 
toral votes  to  60  for  their  opponents,  and  were  elected. 
The  popular  vote  was  nearly  evenly  balanced.  The 
Whigs  had  carried  New  England  (except  New  Hamp- 
shire), New  York,  New  Jersey,  Pennsylvania,  Maryland, 
Delaware,  Ohio,  Indiana,  and  Michigan,  north  of  the 
Potomac;  and  south  of  it  they  had  carried  the  "White 
and  Troup  party "  States,  Tennessee,  Mississippi,  and 
Georgia,  the  Whig  States,  Kentucky,  North  Carolina, 
and  Louisiana,  and  had  made  an  exceedingly  close  con- 
test in  Virginia,  Arkansas,  Missouri,  and  Alabama. 

Evidently,  the  conjunction  of  Harrison  and  Tyler  had 
kept  all  the  elements  of  the  opposition  well  in  hand. 
More  important  still,  the  new  Congress,  to  meet  in  1841, 
had  a  Whig  majority  in  both  Houses,  though  the  major- 
ity was  not  sufficient  to  override  a  veto. 

In  spite  of  its  diversity  of  opinion,  the  party  had  now 
developed  a  number  of  able  leaders,  Clay  and  Webster  at 


244  The  Slavery  Controversy 

their  head,  who  for  the  next  half-dozen  years  were  fast 
giving  their  party  a  definite  policy,  very  similar  to  that 
of  its  most  valuable  element,  the  former  National  Repub- 
licans. Among  these  were :  Evans,  Kent,  and  Fessenden, 
of  Maine ;  Slade,  Collamer,  and  George  P.  Marsh,  of  Ver- 
mont; J.  Q.  Adams,  Winthrop,  Choate,  Everett,  John 
Davis,  Abbott  Lawrence,  and  Briggs,  of  Massachusetts; 
Truman  Smith,  of  Connecticut ;  Granger,  Fillmore, 
Seward,  Spencer,  N.  K.  Hall,  Tallmadge,  Weed,  and 
Greeley,  of  New  York;  Dayton,  of  New  Jersey;  For- 
ward, Meredith,  and  Ingersoll,  of  Pennsylvania;  Bayard, 
Clayton,  and  Rodney,  of  Delaware;  Kennedy,  Cost 
Johnson,  and  Reverdy  Johnson,  of  Maryland ;  Archer, 
Botts,  Leigh,  and  W.  B.  Preston,  of  Virginia;  Graham, 
Mangum,  Rayner,  Clingman,  and  Badger,  of  North  Caro- 
lina; Legar£,  of  South  Carolina;  Berrien,  Forsyth,  King, 
Stephens,  and  Toombs,  of  Georgia;  H.  W.  Milliard,  of 
Alabama;  S.  S.  Prentiss,  of  Mississippi;  Bell  and  Jar- 
nagin,  of  Tennessee  ;  Crittenden,  Morehead,  Garret 
Davis,  Wickliffe,  John  White,  and  Underwood,  of  Ken- 
tucky ;  McLean,  Giddings,  Vinton,  Corwin,  and  Ewing,  of 
Ohio;  R.  W.  Thompson  and  Caleb  B.  Smith,  of  Indiana; 
and  Woodbridge  and  Howard,  of  Michigan.  Of  the  old 
nullifier  element,  Rives,  Wise,  Gilmer,  and  Upshur  drifted 
off  to  the  opposite  party  under  Tyler's  leadership. 

Harrison's  sudden  death,  and  the  accession  of  Tyler, 
were  severe  blows  to  the  rising  party,  for  they  placed  it 
temporarily  under  the  feet  of  the  remnants  of  its  former 
allies,  the  nullifiers,  just  as  it  had  begun  to  learn  that  it 
had  a  policy  of  its  own  which  nullifiers  could  not  support. 
But  the  Whigs  themselves,  and  particularly  Clay,  made 
the  blow  needlessly  severe.  Seeing  here  an  opportunity 
to  secure  for  himself  an  undisputed  party  dictatorship 
in  a  war  on  Tyler,  he  declared  war  and  carried  it  on  ct 
Foutrance.  Its  bank  details  are  elsewhere  given.1 

1  See  Bank  Controversies,  IV. 


Political  Parties,  1824-1876          245 

In  1842,  by  the  act  of  August  3Oth,  the  Whigs  secured 
a  protective  tariff,  closely  following  that  of  1832,  but  only 
after  sacrificing  a  section  continuing  the  distribution  of 
land  to  the  States,1  because  of  which  Tyler  had  vetoed 
the  whole  bill.  In  the  elections  of  1842  for  the  second 
Congress  of  Tyler's  term,  the  Democrats  obtained  a  two- 
thirds  majority  in  the  House,  a  result  usually  regarded 
as  an  infallible  presage  of  the  succeeding  presidential 
election. 

And  yet  the  Whigs  do  not  seem  to  have  really  been 
weakened.  Their  convention  met  at  Baltimore,  May  i , 
1844,  the  first  and  last  really  representative  convention  of 
the  party.  For  the  Presidency  Clay  was  nominated  by 
acclamation ;  and  for  the  Vice-Presidency  Theodore  Fre- 
linghuysen,  then  of  New  York  City,  was  nominated  on 
the  third  ballot. 

For  the  first  time  the  party  produced  a  platform,  a 
model  in  its  way,  as  follows : 

"that  these  [Whig]  principles  may  be  summed  up  as  com- 
prising a  well-regulated  national  currency;  a  tariff  for  revenue 
to  defray  the  necessary  expenses  of  the  Government,  and 
discriminating  with  special  reference  to  the  protection  of  the 
domestic  labor  of  the  country;  the  distribution  of  the  proceeds 
from  the  sales  of  the  public  lands;  a  single  term  for  the  Presi- 
dency ;  a  reform  of  executive  usurpations ;  and  generally  such 
an  administration  of  the  affairs  of  the  country  as  shall  impart 
to  every  branch  of  the  public  service  the  greatest  practicable 
efficiency,  controlled  by  a  well-regulated  and  wise  economy." 

Even  beyond  the  day  of  election  the  Whigs  were  con- 
fident of  success.  But  their  original  ally,  Calhoun,  had 
been  for  some  years  at  work  on  a  project  which  was, 
directly  and  indirectly,  to  dissolve  the  fragile  bond  which 
as  yet  united  the  Northern  and  Southern  Whigs,  and 

1  See  Internal  Improvements. 


246  The  Slavery  Controversy 

made  them  a  national  party.  It  seems  wrong  to  attribute 
the  proposed  annexation  of  Texas  entirely  to  a  desire  for 
extension  of  the  slave  area :  it  seems  to  have  been  a  sub- 
sidiary object  with  Southern  Democratic  leaders  to  throw 
into  politics  a  question  which  would  cost  Clay  either  his 
Northern  or  his  Southern  support,  and  the  scheme  was 
more  successful  even  than  they  had  hoped. 

The  popular  vote  was  nearly  equal,  and  the  electoral 
votes  were  170  for  Polk  to  105  for  Clay ;  but  in  the  former 
were  included  the  thirty-five  votes  of  New  York  and  the 
six  votes  of  Michigan.  In  both  these  States  the  Polk 
electors  were  only  successful  because  the  Abolitionists1 
persisted  in  running  a  candidate  of  their  own.  Had  their 
votes  gone  to  Clay,  as  they  would  have  done  but  for 
Calhoun's ' '  Texas  question"  and  Clay's  trimming  attitude 
upon  it,  Clay  would  have  been  President  by  146  elec- 
toral votes  to  129,  and  by  a  very  slight  popular  majority. 

What  added  bitterness  to  the  disappointment  was,  that 
the  Democrats  had  taken  a  leaf  from  the  Whig  book  of 
1840,  by  being  protectionist  in  some  States,  and  free 
trade  in  others ;  that  Polk's  majority  of  699  in  Louisiana 
was  the  fruit  of  about  1000  unblushingly  fraudulent  votes 
in  Plaquemines  parish  ;  that  fraudulent  voting  and 
naturalization  were  charged  upon  the  New  York  City 
Democrats;  and  that  Texas  annexation  had  cost  Clay 
the  vote  of  all  the  Southern  States  except  Delaware, 
Maryland,  North  Carolina,  Tennessee,  and  Kentucky. 

The  consequent  bitterness  of  feeling  died  away,  except 
in  one  respect,  the  foreign  vote  and  its  almost  solid  op- 
position to  the  Whigs.  "Ireland  has  conquered  the 
country  which  England  lost,"  wrote  one  of  Clay's  corre- 
spondents after  the  election ;  and  the  permanence  of  this 
feeling  did  much  to  turn  the  Whig  party  into  the  "Native 
American,"  or  "Know-Nothing"  party  of  after  years. 

The  question  of  Texas  annexation  had  not  sufficed  to 

1  See  Abolition,  II. 


Political  Parties,  1824-1876          247 

destroy  the  bond  between  Northern  and  Southern  Whigs, 
for  both  opposed  this  and  subsequent  annexations,  the 
former  for  fear  of  slavery  extension,  and  the  latter  nomi- 
nally on  economic  grounds,  but  really  for  fear  of  the  in- 
troduction of  the  slavery  question  into  politics.  But  the 
war  with  Mexico  gave  their  opponents  another  oppor- 
tunity, which  they  used. 

The  act  recognizing  the  existence  of  war  with  Mexico 
declared  the  war  to  have  arisen  "by  the  act  of  the  republic 
of  Mexico."  The  object  was  to  force  the  Whigs  to  vote 
against  the  war,  a  vote  much  more  dangerous  to  a  South- 
ern than  to  a  Northern  Whig,  or  else  array  the  two  ele- 
ments of  the  party  against  one  another. 

The  Whigs  managed  to  evade  it,  however,  most  of 
them  by  refusing  to  vote,  some  Senators  by  adding  formal 
protests  to  their  affirmative  votes;  and  fourteen  in  the 
House  and  two  in  the  Senate  (Thomas  Clayton  and  John 
Davis)  found  courage  to  vote  against  the  bill.  During 
the  war  the  Whigs  voted  steadily  for  supplies  to  carry  it 
on,  on  the  principle  that  an  American  army  had  been 
thrust  into  danger  and  must  be  supported ;  so  that  the 
Democrats  made  very  little  political  capital  out  of  it. 
Indeed,  the  next  Congress,  which  met  in  1847,  nad  a 
slight  Whig  majority  in  the  House,  a  strong  indication 
of  a  Whig  success  in  the  presidential  election  of  1848. 

But  the  "  Wilmot  Proviso"  (see  that  title)  had  been  in- 
troduced, and  it  was  to  find  at  last  the  joint  in  the  Whig 
armor.  As  the  effort  to  restrict  slavery  from  admission 
to  the  new  Territories  went  on,  it  became  more  evident 
month  by  month  that  it  would  be  supported  by  the  mass 
of  the  Northern  Whigs,  and  opposed  by  the  mass  of  the 
Southern  Whigs,  and  month  by  month  the  wedge  was 
driven  deeper.  Men  began  to  talk  freely  of  a  "reorgani- 
zation of  parties,"  but  that  could  only  affect  the  Whigs, 
for  their  opponents  were  already  running  the  advocates 
of  the  proviso  out  of  their  organization. 


248  The  Slavery  Controversy 

As  the  presidential  election  of  1848  drew  near,  the 
nomination  of  Taylor,  urged  at  first  by  mass  meetings  of 
men  of  all  parties,  became  more  essential  to  the  Whigs. 
The  Democrats,  after  banishing  the  proviso  men,  were 
sufficiently  homogeneous  to  be  able  to  defy  the  slavery 
question  ;  no  such  step  could  be  taken  by  the  Whigs,  and 
they  needed  a  candidate  who  could  conceal  their  want  of 
homogeneity.  In  the  North  Taylor's  antipathy  to  the 
use  of  the  veto  power  was  a  guarantee  that  he  would  not 
resist  the  proviso,  if  passed  by  Congress;  in  the  South  he 
had  the  tact  which  enabled  him  to  answer  an  inquiring 
holder  of  one  hundred  slaves  thus  briefly  and  yet  sugges- 
tively :  "I  have  the  honor  to  inform  you  that  I,  too,  have 
been  all  my  life  industrious  and  frugal,  and  that  the  fruits 
thereof  are  mainly  invested  in  slaves,  of  whom  I  own 
three  hundred.  Yours  truly.  Z.  Taylor."  And  his 
nomination  was  pressed  harder  upon  the  Whigs  by  his 
declared  intention  to  remain  in  the  field  in  any  event,  as 
a  "people's  candidate." 

Nevertheless,  when  the  Whig  convention  met  at  Phila- 
delphia, June  7,  1848,  though  Taylor  had  in  votes,  Clay 
had  97,  Scott  43,  Webster  22,  and  6  were  scattering.  It 
was  not  until  the  next  day,  on  the  fourth  ballot,  that 
Taylor  was  nominated  by  171  votes  to  107  for  all  others. 
Fillmore  was  nominated  for  the  Vice-Presidency  on  the 
second  ballot,  by  173  to  101  for  all  others.  Clay  had 
thus  received  his  discharge  from  party  service,  for  he  was 
now  over  seventy  years  of  age,  and  evidently  this  was  his 
last  appearance  before  a  Whig  convention.  To  Webster, 
also,  though  five  years  younger  than  Clay,  the  blow  was 
severe,  and  he  publicly  declared  Taylor's  nomination  one 
which  was  eminently  unfit  to  be  made ;  but  he  and  the 
other  Northern  Whigs  finally  supported  the  nomination. 

Taylor  carried  all  the  Middle  and  Eastern  States  (ex- 
cept Maine  and  New  Hampshire),  and,  in  the  South, 
Delaware,  Florida,  Georgia,  Kentucky,  Louisiana,  Mary- 


Political  Parties,  1824-1876          249 

land,  North  Carolina,  and  Tennessee,  and  was  elected  by 
163  to  127  electoral  votes.  In  both  the  North  and  the 
South  he  had  also  a  plurality  of  the  popular  vote,  the 
vote  for  Van  Buren  '  preventing  him  from  having  a  ma- 
jority. But  the  election  of  Taylor  was  in  itself  deceptive. 
It  was  the  result  of  Democratic  division  in  one  State, 
New  York,  whose  thirty-six  votes  would  have  elected 
Cass  by  an  exact  reversal  of  the  electoral  votes  as  above 
given.  The  division  had  really  very  little  basis  in  prin- 
ciple, but  was  one  of  those  contests  between  national 
and  state  party  "machines"  which  have  always  been 
common  in  that  State,  but  it  sufficed  to  elect  Taylor,  and 
to  give  the  Whigs  almost  as  many  representatives  in  Con- 
gress as  their  opponents. 

The  meeting  of  the  new  Congress  in  1849  showed  the 
first  strong  sign  of  Whig  dissolution.  A  half-dozen 
Southern  Whigs,  headed  by  Toombs  of  Georgia,  insisted 
on  a  formal  condemnation  of  the  proviso  by  the  Whig 
caucus;  and  when  that  body  refused  to  consider  the  reso- 
lution, the  Toombs  faction  refused  to  act  further  with  the 
party.  The  loss  was  not  large,  but  it  was  the  opening 
which  was  very  soon  to  be  fatal. 

All  through  the  session,  which  ended  with  the  Com- 
promise of  1850,"  the  whole  body  of  Southern  Whigs  ex- 
hibited a  growing  disposition  to  act  together,  even  in 
opposition  to  the  Northern  Whigs,  wherever  the  interests 
of  slavery  were  brought  into  question.  On  the  final 
votes,  in  August  and  September,  1850,  it  is  practically 
impossible  to  distinguish  Southern  Whigs  from  Southern 
Democrats.  Not  that  the  Northern  Whigs  generally  re- 
sorted to  anything  stronger  than  passive  opposition : 
Thaddeus  Stevens's  suggestion,  after  the  passage  of  the 
Fugitive  Slave  Law,  that  the  Speaker  should  send  a  page 
into  the  lobby  to  inform  the  members  there  that  they 
might  return  with  safety  as  the  slavery  question  had  been 

1  See  Free-Soil  Party.  *  See  Compromises. 


250  The  Slavery  Controversy 

disposed  of,  lights  up  the  whole  line  of  policy  of  the 
Northern  Whigs  during  1850.  They  saw  only  that  action 
of  any  kind  must  offend  either  their  Southern  associates 
or  their  own  constituents,  and  in  either  event  ruin  the 
party ;  and  like  the  prudent  man  who  foreseeth  the  evil 
and  hideth  himself,  they  took  temporary  refuge  in  refusal 
to  act. 

Such  a  policy  could  not  be  permanent,  and  yet  most 
of  the  Northern  Whig  leaders  at  first  thought  that  they 
could  at  least  make  its  advantages  permanent ;  that  they 
could  retain  their  Southern  associates  by  acquiescing, 
however  unwillingly,  in  the  final  decision,  and  their 
Northern  constituents  by  their  unwillingness  to  indorse 
the  decision  itself. 

Taylor's  death,  in  1850,  and  Fillmore's  accession, 
committed  the  Northern  Whigs  to  the  official  policy 
of  regarding  the  Compromise  of  1850  as  a  law  to  be 
obeyed  until  repealed,  and  of  opposing  any  attempt 
to  repeal  it  as  a  reopening  of  the  slavery  excitement. 
Webster's  speech  of  March  7,  1850,  which  is  far  oftener 
reviled  than  read,  was  really  only  the  first  declaration  of 
this  policy  and  one  of  the  least  objectionable.  But  the 
popular  clamor  which  it  excited  was  largely  an  indication 
that  Northern  Whig  leaders  were  already  out  of  sym- 
pathy with  a  large  fraction  of  their  constituents. 

In  several  Northern  States  schisms  opened  at  once,  the 
most  prominent  instances  being  those  between  the  "con- 
science Whigs"  and  the  "cotton  Whigs"  in  Massachu- 
setts, and  the  "silver  gray"  or  administration  Whigs, 
and  the  dominant  Seward  faction  in  New  York.  But 
the  general  spread  of  any  such  schism  was  not  possible. 
No  new  leaders  had  been  developed  as  yet  to  take  the 
place  of  the  old  ones,  who  still  held  their  hands  on  the 
party  machinery ;  reflection,  and  the  absence  of  further 
agitation,  made  the  mass  of  Northern  Whigs  willing  to 
retain  their  Southern  wing,  if  the  events  of  1850  could  be 


Political  Parties,  1824-1876          251 

tacitly  treated  as  a  past  episode  in  the  party  history ;  and 
the  first  twenty  months  of  Fillmore's  administration  went 
by  with  a  great  deal  of  murmur,  but  no  open  revolt. 
While  there  was  no  great  disposition  to  excommunicate 
men  like  Seward  and  Giddings,  who  retained  Whig  views 
on  every  subject  outside  of  the  slavery  agitation,  there 
was  at  least  a  disposition  to  relegate  them  to  the  limbo 
of  "  f ree-soilers  "  and  disclaim  responsibility  for  them. 

In  the  spring  of  1852  the  Southern  Whigs  again  inter- 
vened to  finally  break  up  the  party.  For  twenty  years 
they  had  accepted  a  Northern  alliance  mainly  as  a  point 
of  resistance  to  Southern  Democracy,  and  they  had  now 
consorted  with  their  old  opponents  long  enough  to  have 
lost  their  abhorrence  of  them.  As  the  presidential  elec- 
tion of  1852  approached,  they  prepared  an  ultimatum  for 
the  Northern  Whigs  which  they  must  have  known  meant 
either  the  division  or  the  defeat  of  the  party. 

At  the  Whig  caucus,  April  20,  1852,  to  arrange  for  the 
national  convention,  a  Southern  motion  was  made  to 
recognize  the  Compromise  of  1850  as  a  "finality."  The 
motion  was  evaded,  as  not  within  the  powers  of  the 
meeting,  but  its  introduction  was  ominous.  Northern 
Whigs  were  willing  to  yield  to  such  a  recognition,  tacitly : 
to  do  so  expressly  would  have  hazarded  their  majority 
in  every  Northern  Whig  State.  But  when  the  Whig 
national  convention  met  at  Baltimore,  June  i6th,  the 
Southern  ultimatum  was  pressed  again,  and  more  suc- 
cessfully. 

The  platform  was  in  eight  resolutions:  i,  defining  the 
Federal  Government's  powers  as  limited  to  those  "ex- 
pressly granted  by  the  Constitution  ";  2,  advocating  the 
maintenance  of  both  State  and  Federal  governments;  3, 
expressing  the  party's  sympathy  with  "struggling  free- 
dom everywhere  "54,  calling  on  the  people  to  obey  the 
Constitution  and  the  laws  "as  they  would  retain  their 
self-respect  "  ;  and  7,  urging  "respect  to  the  authority  " 


252  The  Slavery  Controversy 

of  the  State  as  well  as  of  the  Federal  Government.  Of 
the  remaining  three,  the  fifth  and  sixth  are  the  last  eco- 
nomic declaration  of  the  party,  as  follows: 

"5.  Government  should  be  conducted  on  principles  of  the 
strictest  economy;  and  revenue  sufficient  for  the  expenses 
thereof  ought  to  be  derived  mainly  from  a  duty  on  imports, 
and  not  from  direct  taxes;  and  in  laying  such  duties  sound 
policy  requires  a  just  discrimination,  and,  when  practicable, 
by  specific  duties,  whereby  suitable  encouragement  may  be 
afforded  to  American  industry,  equally  to  all  classes  and  to 
all  portions  of  the  country.  6.  The  Constitution  vests  in 
Congress  the  power  to  open  and  repair  harbors,  and  remove 
obstructions  from  navigable  rivers,  whenever  such  improve- 
ments are  necessary  for  the  common  defence,  and  for  the 
protection  and  facility  of  commerce  with  foreign  nations  or 
among  the  states — said  improvements  being  in  every  instance 
national  and  general  in  their  character." 

The  eighth  and  last  was  the  Southern  ultimatum,  as 
accepted  and  formulated  by  the  recognized  Northern 
leaders,  the  words  "in  principle  and  substance"  being 
interlined  in  the  draft  by  Webster  at  the  suggestion  of 
Rufus  Choate. 

"8.  That  the  series  of  acts  of  the  Thirty-second  Congress, 
the  act  known  as  the  Fugitive  Slave  Law  included,  are  received 
and  acquiesced  in  by  the  Whig  party  of  the  United  States  as 
a  settlement  in  principle  and  substance  of  the  dangerous  and 
exciting  questions  which  they  embrace;  and,  as  far  as  they 
are  concerned,  we  will  maintain  them  and  insist  upon  their 
strict  enforcement,  until  time  and  experience  shall  demon- 
strate the  necessity  of  further  legislation  to  guard  against  the 
evasion  of  the  laws  on  the  one  hand  and  the  abuse  of  their 
powers  on  the  other — not  impairing  their  present  efficiency; 
and  we  deprecate  all  further  agitation  of  the  question  thus 
settled,  as  dangerous  to  our  peace,  and  will  discountenance 
all  efforts  to  continue  or  renew  such  agitation,  whenever, 


Political  Parties,  1824-1876          253 

wherever,  or  however  the  attempt  may  be  made ;  and  we  will 
maintain  this  system  as  essential  to  the  nationality  of  the 
Whig  party  and  the  integrity  of  the  Union." 

This  was  the  famous  resolution  that  gave  rise  to  the 
popular  verdict  upon  the  party,  "died  of  an  attempt  to 
swallow  the  Fugitive  Slave  Law. ' '  The  other  resolutions 
were  adopted  unanimously;  this  by  a  vote  of  212  to  70, 
the  latter  all  from  Northern  Whigs. 

Three  candidates  were  before  the  convention.  On  the 
first  ballot  Fillmore  had  133  votes,  Scott  131,  and  Web- 
ster 29.  On  the  second  ballot,  the  votes  for  Fillmore 
and  Scott  were  reversed,  and  from  this  point  there  was 
little  change  until,  on  the  fifty-third  ballot,  Scott  was 
nominated  by  159  votes  to  112  for  Fillmore  and  21  for 
Webster.  Graham  was  then  nominated  on  the  second 
ballot  for  the  Vice-Presidency. 

Scott's  availability  was  much  like  that  of  Taylor,  less 
the  latter's  popularity ;  his  military  services  were  great, 
and  very  little  was  known  of  his  political  opinions.  But 
the  Whigs  were  beaten  long  before  election  day.  In  the 
North  the  eighth  resolution  cut  deep  into  the  Whig  vote, 
and  it  gained  no  votes  in  the  South.  For  some  unin- 
telligible reason  Scott  had  been  the  candidate  of  the  anti- 
slavery  vote  in  the  convention,  and  he  was  believed  to  be 
much  under  the  influence  of  Seward :  the  consequent  re- 
fusals of  Southern  Whigs  to  vote  made  the  popular  vote 
in  Southern  States  noticeably  smaller  than  in  1848. 

As  a  result  of  both  influences  the  Whigs  carried  but 
four  States,  Massachusetts  and  Vermont  in  the  North, 
and  Kentucky  and  Tennessee  in  the  South,  and  even 
these  by  very  narrow  majorities.  Scott  and  Graham 
were  defeated;  but  71  Whigs  were  chosen  out  of  234 
Representatives  in  the  next  Congress ;  22  of  these  were 
Southern  Whigs,  most  of  whom,  like  A.  H.  Stephens, 
had  publicly  refused  to  support  Scott  in  1852,  and  were 


254  The  Slavery  Controversy 

soon  to  be  openly  Democrats ;  and  the  great  Whig  party 
was  a  wreck.  The  country  had  no  use  for  it:  its  eco- 
nomic doctrines  were  not  a  subject  of  present  interest, 
and  on  the  overmastering  question  of  the  extension  of 
slavery  it  could  neither  speak  nor  keep  silence  without 
sealing  its  own  fate. 

For  the  first  few  months  of  Pierce's  term  there  was  an 
unwonted  quiet  in  politics.  New  men  sought  to  build  up 
a  new  party  on  the  ruins  of  the  Whig  organization  by 
utilizing  the  old  Whig  feeling  against  the  foreign  vote1; 
and,  as  this  promised  a  possible  escape  from  the  slavery 
question,  the  remnants  of  the  Whig  party  in  1856  indorsed 
the  "American  "  nomination  of  Fillmore  and  Donelson, 
"without  adopting  or  referring  to  the  peculiar  doctrines" 
of  the  party  which  had  at  first  nominated  them.  But, 
by  this  time,  most  of  the  former  Northern  Whig  vote  had 
gone  into  the  new  Republican  party  (see  its  name)  under 
new  leaders,  while  a  large  part  of  the  former  Whig  leaders 
had  gone  into  the  Democratic  party.  Thus  the  former 
element  gave  the  Republican  party  its  economic  doc- 
trines, while  the  latter  lost  all  distinction  as  it  changed 
its  habitat. 

Still,  the  Whig  remnants  lived  on  in  a  few  Northern 
States  until  1857-8,  when  they  were  finally  absorbed  into 
the  Republican  party.  In  1860  the  old  Whig  element  in 
the  border  States  -nominated  Bell  and  Everett/  and  was 
still  strong  enough  to  dispute  the  Southern  States  with 
the  ultra  Democracy ;  but  the  outbreak  of  the  Rebellion 
dissipated  this  last  trace  of  the  once-powerful  Whig  party. 

The  history  of  the  party  nominally  covers  a  quarter  of 
a  century,  1828-52,  but  it  must  be  confessed  that  its  real 
and  distinct  existence  covers  only  about  four  years, 
1842-6,  and  that  its  only  real  party  action  was  its  nomi- 
nation of  Clay  in  1844,  with  the  possible  exception  of 
Clay's  nomination  in  1831.  During  all  the  rest  of  its 

1  See  American  Party.  *  See  Constitutional  Union  Party. 


Political  Parties,  1824-1876          255 

history  the  party  was  trading  on  borrowed  capital,  and 
its  creditors  held  mortgages  on  all  its  conventions,  which 
they  were  always  prompt  to  foreclose.  And  yet  it  had 
its  own  office  to  perform,  for  in  its  members,  rather  than 
in  its  leaders,  was  preserved  most  of  the  nationalizing 
spirit  of  the  United  States.  In  this  sense,  if  we  may  not 
altogether  accept  the  epitaph  suggested  by  one  of  its 
leaders,  that  "the  world  was  not  worthy  of  it,"  we  may 
at  least  believe  that  the  nation  was  not  ready  for  it. 

THE  Loco-Focos  were  the  radical  faction,  1835-7,  °f 
the  Democratic  party,  properly  of  New  York,  though  the 
name  was  afterward  made  national. 

The  early  system  of  bank  charters  in  New  York,  with- 
out any  general  law,  but  by  special  legislation  for  each 
case,  gave  wide  room  for  favoritism,  partisanship,  and 
open  fraud.  In  1798-1800  there  were  but  three  banks 
in  the  State,  at  Albany,  Hudson,  and  New  York  City ; 
and  the  latter  was  entirely  controlled  by  the  Federalists, 
who,  it  was  alleged,  refused  to  accommodate  their  political 
opponents. 

Burr  contrived  to  secure  from  the  Legislature  in  1799 
an  act  "for  supplying  the  city  of  New  York  with  pure 
and  wholesome  water,"  one  clause  of  which  authorized 
the  company  to  employ  its  surplus  capital  "in  any  way 
not  inconsistent  with  the  laws  and  Constitution  of  the 
United  States,  or  of  the  State  of  New  York."  Under 
this  innocent  provision  a  Democratic  bank  was  afterward 
established. 

As  soon  as  the  Democrats  gained  control  of  the  State, 
in  1800-1,  they,  in  their  turn,  chartered  party  banks;  and 
open  corruption  in  the  grant  of  charters  went  so  far  that 
in  1812  the  Governor  prorogued  the  Legislature  from 
March  27th  until  May  2ist,  in  order  to  prevent  the  open 
purchase  of  the  charter  of  the  Bank  of  America  from  the 
Legislature.  In  1821  the  new  constitution  of  the  State 


256  The  Slavery  Controversy 

required  a  two-thirds  vote  of  both  Houses  to  charter  a 
moneyed  institution ;  but  this,  by  increasing  the  amount 
of  purchase  necessary,  made  the  grant  of  new  charters  in 
1825  still  more  scandalous.  All  the  difficulty  was  due  to 
the  vicious  principle  of  incorporating  companies  by  special 
legislation. 

In  1834-5,  when  it  had  become  apparent  that  the  Bank 
of  the  United  States  would  not  be  re-chartered,1  a  mania 
for  new  banks  in  New  York  revived  the  former  scandals ; 
and  the  opposition  which  should  have  been  confined  to 
the  system  of  incorporation  was  at  first  extended  to  the 
corporations  themselves.  Through  the  summer  of  1835 
an  organization  was  effected  of  Democrats  in  New  York 
City  opposed  to  the  banks;  their  original  demand  was 
that  no  special  privileges  should  be  given  by  charter  to 
any  corporation,  and  they  assumed  the  name  of  the 
"equal-rights  party." 

October  29,  1835,  at  a  meeting  called  at  Tammany 
Hall  to  act  on  the  report  of  their  nominating  committee, 
the  regular  or  Tammany  Democrats  attempted  to  seize 
control  of  it,  entering  by  the  back  stairs  as  the  equal- 
rights  men  came  up  the  front.  Both  parties  tumultuously 
elected  chairmen;  but  the  Tammany  men,  finding  their 
opponents  too  strong  for  them,  turned  out  the  gas  and 
retired.  The  equal-rights  men  instantly  produced  candles 
and  "loco-foco"  matches,  relighted  the  hall  temporarily, 
and  concluded  their  work.  From  this  circumstance  the 
Whig  and  the  regular  Democratic  newspapers  invented 
the  nickname  of  the  Loco-Foco  party,  which  clung  to 
the  new  faction,  and  afterward  to  the  whole  Democratic 
party,  for  some  ten  years. 

In  January,  1836,  the  Loco-Foco  county  convention 
adopted  a  platform,  or  "declaration  of  rights";  it  de- 
clared that  the  rightful  scope  of  legislation  was  only  to 
declare  and  enforce  the  natural  rights  of  individuals ;  that 

1  See  Bank  Controversies,  III. 


Political  Parties,  1824-1876          257 

no  legislature  had  the  right  to  exempt  corporations,  by 
charter,  from  trial  by  jury  or  from  the  operation  of  any 
law,  or  to  grant  them  special  privileges ;  that  charters 
were  subject  to  repeal;  and  that  paper  money  in  any 
form  was  a  vicious  circulating  medium. 

The  party  was  steadily  beaten  in  city  elections,  but  its 
vote  increased  so  far  that  in  September,  1836,  it  held  a 
State  convention  at  Utica,  and  nominated  candidates  for 
governor  and  lieutenant-governor.  These  were  also  de- 
feated, but  the  party's  vote  showed  no  signs  of  a  falling 
off,  and  in  September,  1837,  another  convention  was  held 
at  Utica.  This  body  framed  and  proposed  for  general 
discussion  a  new  constitution  for  the  State,  one  of  whose 
features  was  an  elective  judiciary. 

President  Van  Buren's  message,  September  4,  1837,  at 
the  opening  of  the  "panic  session,"  brought  the  Loco- 
Foco  element  back  to  its  original  party,  for,  as  Hammond 
exactly  states  the  case,  "if  it  did  not  place  the  President 
in  an  attitude  of  war  against  the  banks,  it  placed  the 
banks  in  a  belligerent  attitude  against  him."  The  mes- 
sage, in  its  condemnation  of  the  employment  of  corpora- 
tions for  purposes  which  might  be  obtained  by  private 
association,  in  its  opinion  in  favor  of  gold  and  silver  as 
the  only  government  money,  and  in  its  declaration  that 
the  government  revenues  ought  not  to  be  deposited  in 
State  banks,  enabled  the  Loco-Focos  to  regard  Van 
Buren  as  their  own  leader.  They  were  already  prepared 
to  do  so  by  the  course  of  some  of  the  Whigs  in  accepting 
Loco-Foco  nominations,  but  acting  with  the  Whigs  when 
elected. 

From  this  time  they  were  a  part  of  the  Democratic 
party,  but  their  continuing  influence  was  apparent,  I,  in 
the  passage  of  the  safety-fund  banking  law  of  April  13, 
1838,  and,  2,  in  the  State  constitution  of  1846,  with  its 
elective  judiciary,  and  its  prohibition  of  bank  charters, 
except  by  general  laws.  But  from  1837  until  the  slavery 


258  The  Slavery  Controversy 

question  began  to  take  shape,  in  1846-7,  the  Whig 
speakers  and  journals  were  careful  to  give  the  name  Loco- 
Foco  to  the  national  party  of  their  opponents,  as  if  to 
imply  their  general  opposition  to  the  moneyed  interests 
of  the  country,  and  to  transfer  to  them  the  general 
charges  of  agrarianism,  "Fanny- Wright-ism,"  and  revo- 
lutionary designs  which  had  at  first  been  levelled  at  the 
Loco-Focos  by  both  the  regular  Democrats  and  the 
Whigs.1 

THE  AMERICAN  PARTY.— Opposition  to  aliens  has  at 
intervals  been  a  feature  in  American  politics  from  the 
foundation  of  the  government.  During  the  period  1790- 
1812  the  question  whether  war  should  be  declared  against 
Great  Britain  or  against  France  was  almost  always  a 
critical  one,  the  Democrats*  preferring,  of  the  two,  war 
against  Great  Britain,  and  the  Federalists3  war  against 
France,  though  both  were  professedly  anxious  for  neu- 
trality. 

During  this  period  most  of  the  immigrants  were  really 
banished  men,  driven  from  England,  Scotland,  or  Ireland 
for  too  free  use  of  the  printing-press,  for  hostility  to  the 
British  Government,  or  for  affection  to  that  of  France. 
Naturally  these  immigrants  took  the  Democratic  view  of 
the  great  debatable  question,  in  all  its  ramifications ;  as 
naturally  the  Federalists  became  an  anti-alien  party ;  and 
as  naturally  the  aliens  sought  refuge  in  a  permanent 
alliance  with  the  Democrats  which  has  been  kept  up  by 
their  successors. 

The  first  naturalization  act  (March  26,  1790,)  made  two 
years'  residence  necessary,  and  this  was  prolonged  by  act 
of  January  29,  1795,  to  five  years,  as  at  present;  but  the 
Federalists,  in  1798,  having  taken  advantage  of  the  war 

1  See  Bank  Controversies  ;    Independent  Treasury  ;  Democratic  Party, 
IV. 

2  See  Democratic-Republican  Party.  3  See  Federal  Party. 


Political  Parties,  1824-1876          259 

fever  against  France  and  their  own  almost  absolute  power, 
raised  the  period  to  fourteen  years.1  Jefferson's  election 
and  the  Democratic  triumph  in  1800  brought  the  period 
back  to  five  years  in  1802,  and  insured  fresh  reinforce- 
ments of  aliens  to  the  dominant  party.  The  British 
Minister,  Foster,  soon  after  his  return,  in  1812,  from 
America,  where  he  had  honestly  and  vainly  striven  to 
avert  war,  stated  in  the  House  of  Commons  that  among 
those  who  voted  in  Congress  for  the  declaration  of  war 
were  at  least  six  late  members  of  the  Society  of  United 
Irishmen. 

The  increasing  feeling  of  the  Federalists  produced  an 
anti-alien  clause  in  the  amendments  proposed  by  the 
Hartford  Convention,2  but  with  returning  peace  the 
nativist  feeling  died  away.  When  the  congressional 
caucus,  in  1824,  nominated  Crawford  and  Albert  Gallatin 
(a  Swiss  by  birth),  the  latter  withdrew  because  of  the 
strong  objection  made  to  his  nomination,  which,  indeed, 
was  improper. 

The  first  revival  of  nativism  was  naturally  in  New  York 
City,  where  a  foreign  population  early  began  to  form. 
In  1835-7  an  attempt  at  a  native  organization  was  made, 
but  it  had  ended  in  failure  before  the  election  for  mayor 
in  April,  1837.  The  close  vote  of  the  Whigs  and  Demo- 
crats, and  their  alternate  successes,  had  given  bitterness 
to  their  contests  in  the  city,  and  when  the  Democrats  at 
the  election  for  mayor  in  April,  1843,  carried  the  city 
(Morris,  Democrat,  25,398;  Smith,  Whig,  19,517),  they 
proceeded  to  parcel  out  the  local  offices,  giving  the  lion's 
share  to  foreign-born  citizens.  The  result  was  seen  at 
the  election  for  State  Senator  in  November,  1843 :  Jones, 
Democrat,  14,325;  Franklin,  Whig,  14,291;  Quacken- 
boss,  American  Republican,  8549;  the  latter's  vote 
being  evidently  mainly  Democratic.  In  April,  1844,  the 

1  See  Alien  and  Sedition  Laws , 
4  See  Convention,  Hartford. 


260  The  Slavery  Controversy 

vote  stood:  Harper,  native  American,  24,510;  Codding- 
ton,  Democrat,  20,538;  Franklin,  Whig,  5297;  and  the 
city  passed  under  native  control. 

By  this  time  the  native  movement  had  spread  to  New 
Jersey  and  Philadelphia,  and  in  the  latter  place  several 
lives  were  lost  and  much  property  (including  two  Catholic 
churches)  destroyed  in  riots  between  natives  and  Irish 
citizens.  The  Whigs  had  generally  voted  with  the  Demo- 
cratic natives  in  order  to  secure  their  vote  for  Henry  Clay, 
but  when,  in  November,  1844,  New  York  City  and  Phila- 
delphia gave  native  majorities,  and  at  the  same  time  ma- 
jorities for  the  Democratic  presidential  electors,  the 
Whigs  drew  off.  In  April,  1845,  the  vote  in  New  York 
City  stood:  Havemeyer,  Democrat,  24,307;  Harper, 
native  American,  17,485;  Selden,  Whig,  7032;  and  in 
1847  the  new  party  had  disappeared  in  New  York  City. 

As  a  result  of  the  election  of  1844,  the  Twenty-ninth 
Congress,  in  December,  1845,  had  six  native  Represen- 
tatives, four  from  New  York  (2d,  3d,  5th,  and  6th  dis- 
tricts), and  two  from  Pennsylvania  (ist  and  3d  districts). 
In  the  Thirtieth  Congress  there  was  but  one  (Penn- 
sylvania, ist  district).  Thereafter  for  some  years,  with 
the  exception  of  very  small  votes  occasionally  cast 
in  New  York,  New  Jersey,  and  Pennsylvania,  nativism 
disappeared. 

About  1852,  when  the  rapidly  growing  sectional  con- 
test as  to  the  extension  of  slavery  to  the  Territories  had 
begun  to  sap  the  old  allegiance  of  members  of  both  parties, 
and  when  the  Whigs  might  almost  be  described  as  mad- 
dened by  the  steady  stream  of  reinforcement  which  their 
Democratic  opponents  were  receiving  from  immigration, 
nativism  again  appeared  in  the  form,  new  to  American 
politics,  of  a  secret,  oath-bound  fraternity,  whose  name 
is  said  to  have  been  The  Sons  of  '76,  or  The  Order  of  the 
Star-Spangled  Banner.  Its  real  name  and  objects  were 
not  revealed  even  to  its  members  until  they  had  reached 


Political  Parties,  1824-1876          261 

the  higher  degrees,  and  their  constant  answer  when  ques- 
tioned on  these  subjects — "I  don't  know" — became 
almost  a  shibboleth  of  the  order  and  gave  it  the  popular 
name  by  which  it  is  still  known — "Know-Nothings." 

Its  ostensible  moving  causes  were  the  increasing  power 
and  designs  of  the  Roman  Catholic  Church  in  America, 
the  sudden  influx  of  immigrants  after  the  failure  of  the 
European  revolutionary  movements  in  1848-50,  and  the 
greed  and  incapacity  of  naturalized  citizens  for  public 
office;  its  cardinal  principle  was  that  "Americans  must 
rule  America" ;  and  its  favorite  countersign  was  a  myth- 
ical order  of  Washington  on  a  critical  occasion,  "Put 
none  but  Americans  on  guard  to-night."  Its  nomina- 
tions were  made  by  secret  conventions  of  delegates  from 
the  various  lodges,  and  were  voted  for  by  all  members 
under  penalty  of  expulsion.  At  first  these  nominations 
were  merely  selections  of  the  best  men  from  the  rival 
Whig  and  Democratic  tickets.  No  public  notice  of  such 
indorsement  was  ever  given,  but  its  effects  were  visible  in 
the  counting  of  the  votes  and  threw  political  calculations 
into  chaos.  So  long  as  this  plan  was  followed,  though 
the  order's  name  did  not  appear  in  politics,  it  was  really 
the  arbiter  of  elections. 

In  1854  the  Kansas-Nebraska  Bill  was  passed,  and  re- 
sulted in  the  permanent  division  of  the  Northern  Whigs. 
Those  who  were  not  sufficiently  opposed  to  slavery  to 
enter  the  new  Republican  party,  and  who  despaired  of 
further  national  success  under  their  old  party  name,  saw 
no  refuge  from  the  Democratic  party  and  its  reinforce- 
ments from  increasing  immigration  except  in  the  Know- 
Nothing  order,  which  now,  tacitly  accepting  the  name  of 
the  American  party,  struck  out  a  separate  existence  in 
politics. 

The  race  between  the  Republican  and  American  parties 
was  at  first  fairly  even.  In  the  State  elections  of  1854 
the  latter  party  carried  Massachusetts  and  Delaware,  and 


262  The  Slavery  Controversy 

in  New  York  polled  the  respectable  vote  of  122,282. 
But  it  was  still  a  Middle  State  party  and  had  no  opening 
in  the  West,  where  the  Republican  party  was  steadily 
conquering  a  place  as  the  only  opponent  of  the  Demo- 
cratic party.  In  the  State  elections  of  1855  the  American 
party,  though  it  gained  little  in  the  West,  made  a  great 
stride  in  advance  southward,  spreading  its  organization 
among  the  former  Whigs  in  that  section.  So  late  as 
1 88 1  the  proportion  of  foreign-born  population  in  the 
South,  except  in  Florida,  Louisiana,  and  Texas,  was 
under  two  per  cent.,  or  practically  nothing.  In  1855  this 
absence  of  foreign-born  population  was  universal  in  the 
South,  and  the  nativist  feeling  among  the  Whigs  of  that 
section  made  it  easy  to  transfer  them  to  the  American 
party,  which  thus  secured  in  both  sections  the  govern- 
ors and  legislatures  of  New  Hampshire,  Massachusetts, 
Rhode  Island,  Connecticut,  New  York,  California,  and 
Kentucky,  the  controller  and  legislature  of  Maryland, 
and  the  land  commissioner  of  Texas,  and  in  Virginia, 
Georgia,  Alabama,  Mississippi,  Louisiana,  and  Texas 
was  beaten  only  by  majorities  ranging  from  two  thousand 
to  eleven  thousand. 

It  seemed  for  the  moment  *that  three  parties  would 
exist  in  future,  a  Republican  party  in  the  West,  and  an 
American  party  in  the  Southern  and  Middle  States, 
struggling  for  supremacy  in  the  Northeast,  while  the 
Democratic  organization  remained  intact  in  all  the  sec- 
tions. Even  in  the  hour  of  the  American  party's  first 
successes,  however,  Greeley,  of  New  York,  shrewdly  ob- 
served that  it  seemed  to  have  "about  as  many  of  the 
elements  of  persistence  as  an  anti-cholera  or  anti-potato- 
rot  party  would  have." 

Encouraged  by  its  brilliant  initiation  into  State  poli- 
tics, the  order  began  preparations  for  a  campaign  as  a 
national  party  in  1856,  hoping  for  support  from  all  who 
were  tired  of  agitation  either  for  or  against  slavery.  In- 


Political  Parties,  1824-1876          263 

stead  of  this  it  aimed  to  introduce  opposition  to  aliens 
and  Catholicism  as  a  national  question.  Leading  Catho- 
lics were  brought  to  bay  in  public  controversies,  the  per- 
secutions in  all  countries  by  the  Catholic  Church  were 
recounted,  special  denunciations  were  levelled  at  Bedini, 
the  "pope's  nuncio,"  and  Americans  were  warned  that 
the  inquisition  would  "kindle  the  fires  of  the  holy  auto 
da  ft  on.  the  high  places  of  our  republic,  and  deluge  our 
blooming  plains  with  American  blood."  The  hollow- 
ness  of  this  effort  to  escape  the  inevitable  conflict,  ostrich- 
fashion,  became  evident  in  the  party's  first  and  only 
national  convention,  into  which  the  dreaded  slavery 
question  at  once  forced  its  entrance. 

February  19,  1856,  a  secret  grand  council  of  delegates 
met  at  Philadelphia  and  after  a  stormy  session  of  three 
days  adopted,  February  2ist,  a  platform  in  sixteen  prop- 
ositions, the  principal  being  as  follows : 

"  (3)  Americans  must  rule  America;  and  to  this  end 
native-born  citizens  should  be  selected  for  all  State,  Federal, 
and  municipal  offices.  (9)  A  change  in  the  laws  of  naturaliza- 
tion, making  a  continued  residence  of  twenty-one  years  neces- 
sary for  future  citizenship.  (12)  The  enforcement  of  'all 
laws'  until  repealed  or  decided  unconstitutional.  (13)  Oppo- 
sition to  Pierce's  Administration  for  its  expulsion  of  'Ameri- 
cans' from  office,  and  its  reopening  sectional  strife  by 
repealing  the  Missouri  Compromise.  (15)  That  State  councils 
should  abolish  their  degrees,  and  substitute  a  pledge  of 
honor  to  applicants  for  admission." 

The  party,  thus  dropping  a  part  of  its  secret  machinery, 
hoped  to  gain  votes  in  the  North  by  denouncing  the  Ad- 
ministration and  the  Kansas-Nebraska  Bill,  in  the  South 
by  upholding  the  Fugitive  Slave  Law,  and  in  both 
sections  by  substituting  nativism  for  slavery  agitation. 

The  open  nominating  convention  met  the  following 
day,  February  22d,  with  227  delegates,  Maine,  Vermont, 


264  The  Slavery  Controversy 

Georgia,  and  South  Carolina  being  unrepresented.  About 
fifty  delegates  were  "north"  Americans,  of  Republican, 
or  anti-Nebraska,  sympathies,  and  these  offered  a  reso- 
lution denying  the  power  of  the  secret  grand  council  to 
bind  the  convention  by  a  platform.  This  was  negatived, 
141  to  59,  and  by  151  to  51  a  ballot  for  candidates  was 
ordered.  Many  of  the  "north"  Americans  then  with- 
drew. After  one  informal  ballot,  Millard  Fillmore  was 
nominated,  on  the  first  formal  ballot,  as  follows:  M. 
Fillmore,  179;  George  Law,  24;  Kenneth  Rayner,  14; 
John  McLean,  13;  Garret  Davis,  10;  Sam.  Houston,  3. 
Necessary  to  a  choice,  122. 

By  a  vote  of  181  to  24  for  all  others,  Andrew  Jackson 
Donelson,  of  Tennessee,  was  nominated  for  Vice-Presi- 
dent, and  the  convention  adjourned.  Its  nominations 
were  adopted,  "without  adopting  or  referring  to  the 
peculiar  doctrines  of"  the  American  party,  by  a  Whig 
national  convention  at  Baltimore,  September  i/th. 

The  preliminary  State  elections  of  1856  were  by  no 
means  discouraging  for  the  American  party.  In  New 
Hampshire  and  Rhode  Island  its  governors  were  renomi- 
nated  and  elected  in  the  spring,  so  that  eight  of  the 
thirty-two  States  now  had  American  governors.  The 
presidential  election  in  November,  however,  showed  that 
in  national  matters  the  party  had  indeed  none  of  the  "ele- 
ments of  persistence."  In  New  Hampshire,  in  March, 
1856,  the  vote  had  been  32,119  American,  32,031  Demo- 
cratic, 2360  Whig;  in  November  of  the  same  year  it  was 
38,345  Republican,  32,789  Democratic,  422  American. 
The  first  wave  of  the  Republican  tide  from  the  West  had 
washed  nativism  almost  out  of  New  England.  The 
American  (popular)  vote  was  874,534  in  a  total  of  4,053,- 
967;  and  its  total  electoral  vote  was  8  out  of  296,  the 
vote  of  Maryland. 

In  the  State  elections  of  1857  the  American  party  car- 
ried Rhode  Island  and  Maryland,  and  in  the  Thirty-fifth 


Political  Parties,  1824-1876          265 


Congress,  which  met  in  December,  1857,  ft 
fifteen  to  twenty  Representatives  and  five  Senators. 
When  the  Thirty-sixth  Congress  met  in  1859  ft  ^a<^  De~ 
come  almost  entirely  a  border  State  or  "south"  American 
party,  having  two  Senators,  one  each  from  Kentucky 
and  Maryland,  and  twenty-three  Representatives,  as  fol- 
lows: Kentucky  5,  Tennessee  7,  Maryland  3,  Virginia  i, 
North  Carolina  4,  Georgia  2,  and  Louisiana  i.  In  1860* 
it  made  another  desperate  effort  to  save  the  country  by 
ignoring  slavery  agitation,  and,  having  failed  to  carry  the 
South,  disappeared  finally  from  politics. 

The  existence  of  a  secret  and  oath-bound  party  was 
always  an  anachronism  in  an  age  and  country  where  free 
political  discussion  is  allowed.  But  the  short-lived  or- 
ganization introduced  many  young  men  to  politics,  who 
would  have  found  no  opportunity  in  the  other  parties, 
and  served  to  delay  in  some  degree  the  inevitable  conflict 
until  the  adverse  elements  had  fully  come  to  a  head.* 

THE  HUNKERS  were  originally  the  conservative  Demo- 
crats in  New  York  State,  but  the  name  was  used  occasion- 
ally also  in  other  States.  Although  the  name  was  not  used 
until  about  1844,  the  faction  to  which  it  was  applied  may 
be  traced  through  New  York  history  from  1835  until  1860, 
in  opposition  successively  to  the  "Loco-Foco"  faction, 
the  Radicals,  and  the  Barnburners;  and  finally  divided 
into  the  "Hards"  and  the  "Softs."  In  all  these  divi- 
sions the  Hunkers  represented  merely  the  inertia  of  the 
State  Democratic  party,  and  its  dislike  to  the  introduc- 
tion of  new  questions.  From  1835  until  1840  the  Hunk- 
ers, though  not  yet  named,  were  opposed  to  the  Loco- 
Foco  war  on  bank  charters,"  but  yielded  so  far  as  to  pass 
a  satisfactory  State  banking  law  in  1838.  From  1840  until 
1846  they  opposed,  with  the  same  final  want  of  success, 

1  See  Constitutional  Union  Party. 

1  See  Whig  Party  ;  Anti-Masonic  Party,  II.  *  See  Loco-Foco. 


266  The  Slavery  Controversy 

the  demand  of  the  Radicals  for  a  revision  of  the  State 
constitution,  an  elective  judiciary,  and  a  cessation  of 
unprofitable  canal  enterprises.  From  1846  until  1852 
they  were  finally  successful,  though  at  first  defeated,  in 
opposing  the  maintenance  of  the  State  branch  of  the 
Democratic  party  in  antagonism  to  the  national  party.1 

After  1852  the  Marcy  portion  of  the  Hunkers,  com- 
monly called  "Softs,"  supported  the  Pierce  Administra- 
tion, while  the  Dickinson  wing,  the  "Hards,"  opposed  it. 
During  the  Civil  War  the  latter  were  generally  "war 
Democrats."  During  the  last  eight  years  of  the  period 
1835-60,  the  division  line  was  fainter,  but  in  general  the 
Hunker  leaders  were  Daniel  S.  Dickinson,  Edwin  Cros- 
well,  Wm.  C.  Bouck,  Wm.  L.  Marcy,  Horatio  Seymour, 
and  Samuel  Beardsley ;  and  their  leading  opponents  were 
Martin  Van  Buren,  Silas  Wright,  A.  C.  Flagg,  John  A. 
Dix,  Reuben  E.  Fenton,  Samuel  Young,  and  Michael 
Hoffman. 

THE  FREE-SOIL  PARTY.— The  history  of  this  party, 
the  first  one  which  aimed  specially  at  the  restriction  of 
slavery  to  its  State  limits,  covers  a  period  of  but  about 
five  years,  1848-52,  and  may  best  be  understood  by  first 
considering  the  two  elements  which  composed  it,  the  po- 
litical Free-Soilers  and  the  conscientious  Free-Soilers. 

i.  The  political  Free-Soilers  were  confined  to  the  State 
of  New  York,  and  were  mainly  the  voters  of  that  State 
political  organization,  or  "machine,"  of  which  ex-Presi- 
dent Van  Buren  had  long  been  the  recognized  head. 
Van  Buren's  defeat  in  the  Democratic  convention  of 
1844,  and  the  political  revolution  in  the  party  which  was 
a  consequence  of  it,  were  results  of  Southern  votes  and 
of  a  distinct  Southern  question;  and  the  first  effort  of 
the  Polk  Administration,  like  every  other  administration 
of  any  party  in  a  similar  situation,  was  to  encourage  the 

1  See  Barnburners,  Free-Soil  Party. 


Political  Parties,  1824-1876          267 

building  up  of  a  new  organization  of  its  own,  for  the  pur- 
pose of  ousting  the  old  organization  from  the  control  of 
the  great  State  of  New  York.1  The  old  organization, 
however,  in  the  present  case,  was  too  strongly  entrenched 
to  surrender  power  easily,  and  the  four  years  of  Folk's 
Administration  were  marked  by  a  progressive  split  in  the 
Democratic  party  of  New  York,  resulting,  toward  1847, 
in  the  formation  of  two  distinct  factions,  the  Barnburners 
and  the  Hunkers."  The  former  was  the  Van  Buren 
organization,  and  its  opposition  to  the  Administration 
which  had  supplanted  it  naturally  took  the  form  of  oppo- 
sition to  the  extension  of  slavery  to  the  Territories.  It 
therefore  fell  naturally  into  the  Free-Soil  party  on  its 
organization.  The  division  in  the  New  York  Democratic 
party,  though  apparently  healed  in  1852,  lasted  in  reality 
for  many  years  further,  the  former  Barnburners  and 
Hunkers  taking  the  names  of  "Softs"  and  "Hards," 
respectively. 

2.  The  conscientious  Free-Soilers  were  not  confined 
to  New  York,  but  were  found  in  every  Northern  State, 
and  in  Maryland,  Delaware,  Virginia,  and  Kentucky,  in 
the  South.  They  were  mainly  the  members  of  the 
Liberty  party,8  re-enforced,  after  1844,  by  a  part  of  the 
anti-slavery  element  which  had  been  common,  up  to 
that  year,  throughout  the  agricultural  membership  of  the 
Northern  Democratic  party.  In  the  fall  of  1847  they 
held  a  -national  convention  at  Buffalo,  still  under  the 
name  of  the  Liberty  party,  and  nominated  John  P.  Hale, 
of  New  Hampshire,  and  Leicester  King,  of  Ohio,  as 

1  See  Democratic-Republican  Party. 

3  The  Barnburners  were  the  Free-Soil  Democrats  (especially  applied  to 
those  of  New  York)  who  were  bent  upon  freeing  their  party  from  com- 
plicity with  slavery  extension.  They  were  ready  to  leave  their  party  rather 
than  be  made  responsible  for  such  a  policy.  Their  Hunker  opponents 
compared  them  to  the  stupid  farmer  who  proposed  to  burn  his  barn  in 
order  to  get  rid  of  the  rats  ;  hence  the  name. 

3  See  Abolition,  II. 


268  The  Slavery  Controversy 

presidential  candidates;  but  toward  the  spring  of  1848 
the  evident  division  in  the  New  York  Democratic  party, 
which  it  was  hoped  would  extend  to  other  States,  en- 
couraged them  to  drop  their  nominations  and  take  part 
in  the  formation  of  the  Free-Soil  party. 

The  Democratic  convention  at  Baltimore  in  1848  was 
attended  by  delegations  from  both  the  Barnburner  and 
Hunker  factions  from  New  York,  each  claiming  to  repre- 
sent the  State.  May  25th,  by  a  vote  of  133  to  118,  the 
convention  admitted  both  delegations,  giving  half  the 
State  vote  to  each.  Both  delegations  rejected  the  de- 
cision, and  withdrew  from  the  convention. 

The  Hunkers,  satisfied  with  having  kept  their  oppo- 
nents out,  and  secure  of  the  support  of  the  Administra- 
tion, did  nothing  further.  The  Barnburners  met  in 
State  convention  at  Utica,  June  22d,  and  nominated 
Martin  Van  Buren  and  Henry  Dodge,  of  Wisconsin,  as 
presidential  candidates,  apparently  for  the  purpose  of 
maintaining  their  State  organization,  of  showing  their 
ability  to  control  the  State  electoral  vote,  and  thus  of 
forcing  some  compromise  which  would  secure  for  them 
recognition  as  an  essential  part  of  the  New  York  Democ- 
racy. General  Dodge  refused  to  accept  the  nomination. 

In  the  meantime  a  call  had  been  issued  for  a  general 
Free-Soil  convention  at  Buffalo,  August  9th.  It  was 
attended  by  465  delegates  from  nearly  all  the  free  States, 
and  from  Delaware,  Maryland,  and  Virginia,  eighteen 
States  in  all.  For  President,  Martin  Van  Buren  received 
244  votes  to  181  for  John  P.  Hale,  and  was  nominated; 
Charles  Francis  Adams  was  nominated  for  Vice-President. 
The  platform  was  very  long,  in  three  preambles  and  six- 
teen resolutions. 

The  preambles  declared  the  delegates'  independence 
of  the  slave  power;  their  secession  from  the  Democracy; 
their  inability  to  join  the  Whigs,  who,  in  nominating 
Taylor,  had  "abandoned  their  distinctive  principles  for 


Political  Parties,  1824-1876          269 

mere  availability";  and  their  determination  to  secure 
"free  soil  to  a  free  people." 

The  resolutions  declared  in  general  that  slavery  in  the 
States  was  valid  by  State  laws,  for  which  the  Federal 
Government  was  not  responsible ;  but  that  Congress  had 
"no  more  power  to  make  a  slave  than  to  make  a  king," 
and  hence  was  bound  to  restrict  slavery  to  the  slave 
States,  and  to  refuse  it  admission  to  the  Territories. 

In  the  election  of  1848  for  President  the  new  party 
cast  291,263  votes,  a  great  but  deceptive  advance  on  the 
Liberty  party's  vote  in  1844.  It  was  entirely  a  free-State 
vote,  except  9  in  Virginia,  80  in  Delaware,  and  125 
in  Maryland.  Outside  of  New  York  the  Free-Soilers 
outnumbered  the  Democrats  in  Massachusetts  and  Ver- 
mont, and  gave  the  votes  of  Illinois,  Indiana,  Iowa, 
Maine,  Michigan,  Ohio,  and  Wisconsin  to  the  Demo- 
cratic candidates  by  small  pluralities ;  in  New  York  they 
polled  120,510  votes  to  114,318  votes  for  Cass  and 
Butler,  and  gave  the  electoral  votes  of  the  State  to  the 
Whig  candidates. 

Both  elements  of  the  Free-Soil  party  were  thus  satis- 
fied ;  the  conscientious  Free-Soilers,  frequently  called 
"Abolitionists,"  had  punished  and  demoralized  the 
Whig  party,  and  the  political  Free-Soilers,  commonly 
called  "night  soilers"  or  "free-spoilers,"  by  their  Hunker 
opponents,  had  punished  and  demoralized  the  Democratic 
party. 

The  principal  result  of  the  congressional  elections  of 
the  same  year  was  that  the  New  York  delegation  was 
changed  from  ten  Democrats  and  twenty-four  Whigs  (in 
1847-9)  to  one  Democrat,  one  Free-Soiler,  and  thirty- 
two  Whigs  (in  1849-51). 

In  Congress  the  Free-Soil  Representatives  at  once  took 
separate  ground,  apart  from  both  Whigs  and  Democrats. 
In  the  Thirty-first  Congress  they  numbered  two  in  the 
Senate,  Hale  and  S.  P.  Chase),  and  in  the  lower  House 


270  The  Slavery  Controversy 

fourteen,  including  Preston  King,  of  New  York,  J.  R. 
Giddings,  Lewis  D.  Campbell,  and  Joseph  M.  Root,  of 
Ohio,  Geo.  W.  Julian,  of  Indiana,  David  Wilmot,  of 
Pennsylvania'  and  Horace  Mann,  of  Massachusetts.  In 
the  Thirty-second  Congress  (1851-3)  they  had  three  in 
the  Senate,  Charles  Sumner  having  taken  his  seat 
there,  and  seventeen  in  the  House.  In  the  Thirty-third 
Congress  (1853-5)  tne  Free-Soilers  in  the  Senate  num- 
bered from  three  to  five;  in  the  House  they  had  about 
the  same  number.  After  that  time  they  were  swallowed 
up  in  the  sudden  rise  of  the  anti-Nebraska  tide.8 

Negotiations  between  the  political  Free-Soilers  and  the 
other  Democratic  faction  in  New  York  began  again  (if  they 
had  ever  really  ceased)  in  1849.  Both  factions  attended 
the  State  convention  of  that  year,  and  united  in  the  nomi- 
nation of  State  candidates  and  in  the  adoption  of  a  vague 
and  indefinite  resolution  on  the  slavery  question.  In 
1850  the  State  convention  went  further,  and  passed  a 
resolution  that  it  was  "proud  to  avow  its  fraternity  with 
and  devotion  to  "  the  principles  of  the  Democratic  na- 
tional convention  of  1848.  Against  this  resolution  the 
political  Free-Soilers,  headed  by  John  Van  Buren,  could 
now  muster  but  twenty  votes.  The  result  was  the  ab- 
sorption of  the  Van  Buren  faction  into  the  State  Demo- 
cratic party,  and  the  reduction  of  the  Free-Soil  vote  of 
New  York  in  1852  to  its  real  limits.  The  breach  in  the 
State  Democracy  was  thus  closed,  but  never  really 
healed. 

In  1852  the  national  convention  of  both  the  Whig 
and  the  Democratic  parties  accepted  the  compromise  of 
1850*  in  all  its  parts.  The  Free-Soilers  therefore  held  a 
convention  at  Pittsburg,  August  11,  1852,  with  delegates 
from  all  the  free  States,  and  from  Delaware,  Maryland, 
Virginia,  and  Kentucky.  Their  recent  New  York  allies 

1  See  Wilmot  Proviso. 

3  See  Republican  Party.  3  See  Compromises,  V. 


Political  Parties,  1824-1876          271 

were  not  represented.  Henry  Wilson,  of  Massachusetts, 
presided;  the  platform  of  1848  was  enlarged  to  twenty- 
two  resolutions;  and  John  P.  Hale,  of  New  Hampshire, 
and  George  W.  Julian,  of  Indiana,  were  nominated  as 
presidential  candidates.  The  platform  of  the  "Free 
Democratic  party  "  denounced  slavery  as  "a  sin  against 
God  and  a  crime  against  man" ;  it  denounced  "both  the 
Whig  and  the  Democratic  wings  of  the  great  slave  com- 
promise party  of  the  nation"  ;  and  it  repudiated  the  Com- 
promise of  1850,  and  demanded  the  repeal  of  the  Fugitive 
Slave  Law. 

In  the  presidential  election  of  1852  the  Free-Soilers 
cast  but  156,149  votes,  all  in  Northern  States  excepting 
62  in  Delaware,  54  in  Maryland,  265  in  Kentucky,  and 
59  in  North  Carolina.  In  all  the  Northern  States  except 
Iowa,  the  Free-Soil  vote  was  slightly  decreased,  owing 
mainly  to  the  party's  rejection  of  the  compromise  of 
1850;  in  New  York  it  had  fallen  to  25,329,  the  real 
Free-Soil  vote,  apart  from  its  political  allies  in  that 
State. 

After  the  election  of  1852  the  Free-Soilers  shared  in 
the  general  suspension  of  political  animation  which  fol- 
lowed. In  1854  they  opposed  the  Kansas- Nebraska  Bill, 
and  in  1855-6  were  absorbed  by  the  newly  formed 
Republican  party.  The  Thirty-fourth  Congress,  when 
it  met  in  December,  1855,  contained  Democrats,  Whigs, 
anti-Nebraska  men,  Free-Soilers,  and  Americans  or 
Know-Nothings  ;  before  February,  1856,  there  were 
only  Republicans,  Democrats,  and  Americans,  and  the 
Whig  and  Free -Soil  parties  had  disappeared  from 
Congress. 

The  principles  of  the  Free-Soil  party  as  to  slavery  re- 
striction were  identical  with  those  of  the  great  and  suc- 
cessful Republican  party  which  followed  it,  and  yet  the 
former,  from  1846  until  1854,  probably  never  really 
gained  ten  thousand  votes  in  the  entire  country.  Its 


272  The  Slavery  Controversy 

lack  of  success  was  due  in  part  to  its  insistence  upon 
strict  construction  in  other  matters  than  slavery,  while 
the  Republican  party  was  generally  broad  construction ; 
but  the  principal  reason  was,  that  the  country  was  not 
yet  ready  for  it.  Some  such  measure  as  the  Kansas- 
Nebraska  Bill  was  an  essential  prerequisite  to  the  forma- 
tion of  a  successful  anti-slavery  party ;  and  opposition  to 
that  particular  measure  required  broad-construction  views 
of  the  powers  of  Congress.1 

THE  CONSTITUTIONAL  UNION  PARTY,  was  the  name 
adopted  in  1860  by  the  Southern  remnant  of  the  defunct 
Whig  party.  The  election  of  1852  closed  the  national 
career  of  the  Whigs.  In  1856  they  endeavored  to  evade 
the  slavery  question  by  joining  with  the  Know-Nothings,' 
but  the  result  showed  that  this  alliance  had  no  hope  of 
success.  May  9,  1860,  a  convention  was  held  at  Balti- 
more of  Whigs  who  had  not  yet  drifted  off,  in  the  South, 
to  the  Democratic,  or,  in  the  North,  to  the  Republican, 
party.  Delegates  were  present  from  twenty  States,  and 
but  two  ballots  were  needed  for  the  choice  of  the  leading 
candidate.  On  the  first,  Bell  had  68^-  votes,  Houston  57, 
Crittenden  28,  Everett  25,  W.  A.  Graham,  22,  McLean 
21,  and  32^-  scattering;  on  the  second,  Bell  had  138, 
Houston  69,  Graham  18,  and  27  scattering.  Bell  was 
thus  nominated  for  the  Presidency ;  and  Everett  was  then 
unanimously  nominated  for  the  Vice-Presidency. 

The  platform  adopted  consisted  of  a  preamble  denounc- 
ing platforms  in  general  as  tending  to  form  "geographical 
and  sectional  parties,"  and  a  resolution,  in  part  as  fol- 
lows: "That  it  is  both  the  part  of  patriotism  and  of  duty 
to  recognize  no  political  principle  other  than  the  consti- 
tution of  the  country,  the  union  of  the  States,  and  the 
enforcement  of  the  laws"  The  rest  of  the  resolution 

1  See  Nation  ;  Democratic  Party,   IV.  ;  Republican   Party,  I.  ;  Wilmot 
Proviso  ;  Abolition,  II.  ;  Slavery. 
3  See  American  Party,  I. 


Political  Parties,  1824-1876          273 

merely  pledged  the  convention  to  support  the  principles 
assigned.  It  seems  to  have  unfortunately  escaped  the 
attention  of  the  convention  that  the  true  interpretation 
of  the  three  principles,  which  it  announced  as  fixed  and 
settled,  was  the  question  then  in  dispute  and  unsettled. 
The  object  of  the  resolution,  however,  though  clumsily 
expressed,  is  sufficiently  plain :  it  was  an  invitation  to  all 
patriotic  voters  to  abandon  the  Republican  party,  which 
attacked,  and  the  Democratic  party,  which  defended 
slavery,  and  recur  to  the  old  Whig  programme  of  entirely 
ignoring  slavery  as  a  political  question.  Its  avoidance 
of  the  word  Whig,  and  its  acceptance  of  a  new  name, 
should  have  been  a  plain  warning  that  its  programme  was 
also  obsolete. 

In  the  South  the  Bell- Everett  platform  was  the  only 
medium  of  expression  for  the  Union  men  of  the  section, 
who  could  not  be  Republicans  and  would  not  be  Breckin- 
ridge  Democrats.  It  carried  Kentucky,  Tennessee,  and 
Virginia  by  pluralities  over  Breckinridge,  and  came  within 
722  votes  of  carrying  Maryland.  It  was  defeated  by  less 
than  four  thousand  votes  in  each  of  the  States  of  Arkan- 
sas, Delaware,  North  Carolina,  Florida,  and  Louisiana, 
and  in  only  two  Southern  States,  Mississippi  and  Texas, 
was  defeated  by  more  than  ten  thousand  votes.  In  the 
North  it  was  almost  a  nonentity,  its  votes  ranging  from 
161  out  of  152,180  in  Wisconsin,  to  6817  out  of  118,840 
in  California.  Its  total  popular  vote  was  589,581,  and 
its  electoral  vote  39. 

The  Bell  leaders  in  the  South  seem  to  have  been  stung 
by  the  Northern  indifference  to  their  claims,  and  offered 
little  effective  resistance  to  the  secession  movement  which 
followed  the  election.  The  first  wave  of  civil  war  blotted 
out  forever  the  last  trace  of  the  Whig  party,  and  its  few 
surviving  members,  when  they  reappeared  in  politics, 
during  and  after  reconstruction,  did  so  as  Democrats.1 

1  See  Democratic  Party,  VI. 

VOL.  II. — 1 8. 


274  The  Slavery  Controversy 

See  references  on  Parties  1789-1824  in  Vol.  I.  In  addi- 
tion to  those  references,  see  also,  on  the  period  1824-1860. 

(A)  In  General:  See  Capen's  History  of  Democracy ; 
Gillet's  Democracy  in  the  United  States ;  Van  Buren's 
Origin  of  Political  Parties  in  the  United  States ;  Cutts's 
Treatise  on  Party  Questions  ;  Harris's  Political  Conflict  in 
America;  G.  Lunt's  Origin  of  the  Late  War;  Tucker's 
United  States  (to  1 840) ;  Wise's  Seven  Decades;  Cluskey's 
Political  Text  Book  of  1860 ;  Tribune  Almanac  (1838-81) ; 
North  American  Review  (January,  1876),  Art.  "Politics 
in  America";  Draper's  Civil  War ;  Greeley's  American 
Conflict ;  1-3  Von  Hoist's  United  States  ;  Young's  Ameri- 
can Statesman  ;  Johnston's  History  of  American  Politics ; 
Statemaris  Manual ;  Benton '  s  Debates  of  Congress  ( 1 789- 
1850);  Congressional  Globe  ( 1 850-61);  Appleton'sAnnua/ 
Cyclopedia  (i 861-80).  (B)  In  Particular  Periods:  (I., 
II.:  1789-1801)  see  I  Schouler's  United  States ;  2  Pit- 
kin's  United  States;  2  Holmes's  United  States ;  4,  5 
Hildreth's  United  States  ;  I  Draper's  Civil  War  (introd. 
chap.);  3,  4  Jefferson's  Works  (ed.  1829);  i,  2  Rives's 
Life  of  Madison-,  2  Randall's  Life  of  Jefferson  ;  I  Tuck- 
er's Life  of  Jefferson  ;  Austin's  Life  of  Gerry  ;  Parton's 
Life  of  Burr  ;  i  Parton's  Life  of  Jackson  ;  Adams's  Life 
of  Gallatin ;  Hunt's  Life  of  Livingston^  46-105 ;  and 
authorities  under  Anti-Federal  Party ;  Federal  Party,  I. ; 
Bank  Controversies,  II.;  Whiskey  Insurrection;  Jay's 
Treaty;  X.  Y.  Z.  Mission;  Alien  and  Sedition  Laws; 
Disputed  Elections,  I.  (III.:  1801-25)  see  5,  6  Hil- 
dreth's United  States ;  Bradford's  Federal  Government ; 
i  Hammond's  Political  History  of  New  York;  3  Randall's 
Life  of  Jefferson  ;  2  Tucker's  Life  of  Jefferson  ;  4  Jeffer- 
son's Works  (ed.  1829);  T.  Cooper's  Consolidation;  Par- 
ton's  Life  of  Burr  ;  2  Davis ' s  Life  of  Burr  ;  Garland's 
Life  of  Randolph;  Pinkney's  Life  of  Pinkney ;  Ad- 
ams's Life  of  Gallatin ;  Carey's  Olive  Branch  and  New 


Political  Parties,  1824-1876          275 

Olive  Branch  ;  Jenkins's  Life  of  Calhoun  ;  Dallas's  Writ- 
ings of  Dallas ;  Ingersoll's  Second  War  with  Great 
Britain ;  4-6  Adams's  Memoir  of  John  Quincy  Adams 
(Diary);  and  authorities  under  Annexations,  I.,  II.; 
Burr,  Aaron ;  Embargo ;  Gunboat  System ;  Federal 
Party,  II.;  Clinton,  De  Witt;  Bank  Controversies,  II., 
III.;  Convention,  Hartford;  Whig  Party,  I.;  Congres- 
sional Caucus;  Compromises,  IV. 

On  the  Democratic  Party  (1824-60)  see  Benton's  Thirty 
Years'  View ;  2  Hammond's  Political  History  of  New 
York;  i  Draper's  Civil  War;  2,  3  Von  Hoist's  United 
States ;  The  Democratic  Review  (1838-50);  Bradford's 
Federal  Government  (to  1839);  Amos  Kendall's  Auto- 
biography; Sumner's  History  of  American  Currency ;  3 
Parton's  Life  of  Jackson ;  Hunt's  Life  of  Livingston; 
Hammond's  Life  of  Silas  Wright ;  Holland's  Life  of 
Van  Bur  en  ;  Scott's  Life  of  H.  L.  White;  Mackenzie's 
Life  and  Times  of  Van  Buren,  and  Lives  of  Butler  and 
Hoyt  (both  useless  except  for  the  letters  contained  in 
them);  Jenkins's  Life  of  Calhoun;  Parton's  Famous 
A  mericans;  Appleton ' s  A  merican  Cyclopedia,  Art.  ' '  Cal- 
houn";  Chase's  Administration  of  Polk;  Hamilton's 
Memoir  of  Rantoul ;  and  authorities  under  Whig  Party, 
I.,  II.;  Albany  Regency;  Anti-Masonry;  Nominating 
Conventions;  Cherokee  Case;  Internal  Improvements; 
Foot's  Resolution;  Nullification;  Bank  Controversies, 
III.,  IV;  Deposits,  Removal  of;  Veto;  Censures;  Loco- 
Foco;  Conservative;  Slavery;  Abolition,  II.;  Petition; 
Annexations,  III.,  IV. ;  Oregon;  Wilmot  Proviso;  Barn- 
burners ;  Free-Soil  Party ;  Compromises,  V. ;  Popular 
Sovereignty.  3  Spencer's  United  States ;  Democratic 
Review  (cont.  as  United  States  Magazine,  to  1859); 
3-6  Stryker's  American  Register ;  I  A.  H.  Stephens's 
War  Between  the  States ;  Schuckers's  Life  of  S.  P. 
Chase,  128-195;  Dickinson's  Life  of  D.  S.  Dickinson; 
Botts's  Great  Rebellion;  Pollard's  Lost  Cause  (cap.  i); 


276  The  Slavery  Controversy 

Buchanan's  Buchanan  s  Administration;  Atlantic  Monthly, 
1861,  and  North  A  merican  Review,  1866  (articles  on  Doug- 
las) ;  Chittenden's  Peace  Convention ;  and  authorities 
under  Popular  Sovereignty ;  Fugitive  Slave  Law ;  Kansas- 
Nebraska  Bill ;  Slavery ;  American  Party,  I. ;  Whig  Party, 
II.,  III. ;  Republican  Party ;  Dred  Scott  Case ;  Territories ; 
Kansas;  Brown,  John;  Secession;  Compromises,  VI. 

On  the  Republican  Party  authorities  will  generally  be 
found  under  the  articles  referred  to.  See  also,  2 
Wilson's  Rise  and  Fall  of  the  Slave  Power,  406;  i 
Greeley's  American  Conflict,  246;  McClellan's  Repub- 
licanism in  America  (to  1869);  Giddings's  History  of 
the  Rebellion,  382 ;  Smalley's  History  of  the  Republican 
Party  (to  1882);  Curtis's  History  of  the  Republican 
Party  (to  1904);  Johnston's  History  of  American  Politics, 
162;  Tribune  Almanac,  1855-83;  Greeley's  Political 
Text  Book  of  1860;  McPherson's  Political  History  of 
the  Rebellion,  and  Political  Manuals ;  Moore's  Rebel- 
lion Record;  Schuckers's  Life  of  Chase ;  Raymond's 
Life  of  Lincoln,  and  other  authorities  under  names  referred 
to;  Spofford's  American  Almanac,  1868-83;  Appleton's 
Annual  Cyclopedia,  1861-83;  The  Nation,  1865-83;  and 
current  newspapers;  Woodburn's  Political  Parties; 
Rhodes's  History  of  the  United  States  ;  Stanwood's  His- 
tory of  the  Presidency,  Official  Reports  of  the  National 
Conventions. 

On  Anti-Masonry  see  (i.)  Creigh's  Masonry  and  Anti- 
Masonry ;  2  Hammond's  Political  History  of  New  York, 
369,  403;  H.  Brown's  Anti- Masonic  Excitement,  in 
1826-9;  Ward's  Anti-Masonic  Review  (1828-30);  I 
Seward's  Writings;  Proceedings  of  the  U.  S.  Anti- Ma- 
sonic Convention,  in  Philadelphia,  Sept.  n,  1830 ;  Stone's 
Letters  on  Anti-Masonry;  and  earlier  authorities  under 
Whig  Party;  (2.)  Christian  Cynosure,  1880;  Greene's 
Broken  Seal;  Gasset's  Catalogue  of  Anti-Masonic  Books  in 
Public  Libraries.  The  latest  and  most  complete  treatment 


Political  Parties,  1824-1876          277 

of  this  subject  is  Mr.  Charles  McCarthy's  "The  Anti- 
Masonic  Party,"  in  Report  of  the  American  Historical 
Association  for  1902. 

There  is  no  good  history  of  the  Whig  Party.  Ormsby's 
History  of  the  Whig  Party  gives  so  much  space  to  events 
before  1824  that  only  the  last  two  hundred  pages  treat 
of  events  thereafter,  and  the  treatment  is  itself  of  little 
value.  Niles's  Register,  though  a  periodical,  is  about  the 
best  record  of  the  party,  though  Wilson's  Rise  and  Fall 
of  the  Slave  Power  is  more  convenient.  The  American 
Whig  Review,  published  monthly  1844-52,  will  give  the 
party's  view  of  its  own  work;  and  2  A.  H.  Stephens's 
War  Between  the  States,  237,  will  give  the  inside  history 
of  the  party's  downfall.  Its  platforms  in  full  may  be 
found  in  Greeley's  Political  Text-Book  of  1860,  11-18. 
See  also  2  Von  Hoist's  United  States ;  North  American 
Review,  January,  1876  (W.  G.  Sumner's  "Politics  in 
America");  Wise's  Seven  Decades;  8-16  Benton's  De- 
bates of  Congress ;  2  Hammond's  Political  History  of  New 
York;  Sargent's  Public  Men  and  Events ;  Clay's  Works, 
Private  Correspondence,  and  Colton's  Life  and  Times  of 
Clay ;  Webster's  Works,  Private  Correspondence,  and 
Curtis's  Life  of  Webster ;  Adams's  Memoir  of  John 
Quincy  Adams;  Everett's  Orations  and  Speeches;  Seward's 
Works ;  Coleman's  Life  of  Crittenden  ;  Tuckerman's  Life 
of  Kennedy;  Prentiss's  Memoir  of  S.  S.  Prentiss  ;  Choate's 
Writings,  and  Parker's  Reminiscences  of  Choate ;  Win- 
throp's  Speeches  and  Addresses;  Cleveland's  A.  H. 
Stephens  in  Public  and  Private  ;  the  series  of  biographies 
in  the  Whig  Review ;  the  antagonistic  authorities  under 
Democratic  Party ;  and  authorities  under  articles  referred 
to,  particularly  Bank  Controversies,  III.,  IV.;  Internal 
Improvements;  Abolition;  Compromises,  V.;  Fugitive 
Slave  Law;  American  Party;  Republican  Party. 

On  Loco-Focos  see  2  Hammond's  Political  History  of 
New  York,  489;  Byrdsell's  History  of  the  Loco-Foco,  or 


278  The  Slavery  Controversy 

Equal  Rights,  Party ;  2  Von  Hoist's  United  States,  396; 
Jenkins's  Governors  of  New  York,  591 ;  2  Statesman's 
Manual  (edit.  1849),  1058  (the  anti-bank  portion  of  Van 
Buren's  message). 

On  American  Party  see  Sons  of  the  Sires  (anon.) ;  2 
Wilson's  Slave  Power,  419-434;  Principles  and  Objects  of 
the  American  Party  (anon.) ;  Wise's  Seven  Decades  ;  O.  A. 
Brownson' s  £ssays  and  Reviews  (art.  "Native  American- 
ism ");  Godwin' 's  Political  Essays ;  2  Von  Hoist's  United 
States,  523;  3  Seward's  Works,  386-389;  Bromwell's  Im- 
migration, 157;  Knapp's  Immigration,  228-30;  Tribune 
Almanac,  1844-6,  1855-7;  Clay's  Private  Correspondence, 
497-520;  Carroll's  Great  American  Battle ;  Lee's  Origin 
and  Progress  of  the  American  Party  ;  Whitney's  Defence 
of  the  American  Policy ;  Warner's  Liberties  of  America  ; 
Denig's  Know-Nothing  Manual;  and  later  authorities  un- 
der Whig  Party ;  Rhodes,  vol.  ii. ;  Schouler,  vol.  v. ; 
Smith's  Political  History  of  Slavery  ;  Curtis's  History  of 
the  Republican  Party.  The  acts  of  March  26,  1790,  Janu- 
ary 29,  1795,  and  June  18,  1798,'  are  in  i  Stat.  at  Large, 
103,  414,  566;  the  act  of  April  14,  1802,  is  in  2  Stat.  at 
Large,  153.  Slight  amendments  have  been  made  to  the 
last-named  act  but  without  essentially  changing  it.  By 
the  act  of  March  3,  1813  (2  Stat.  at  Large,  811),  five 
years  residence  was  required  before  admission ;  but  this 
was  repealed  by  act  of  June  26,  1848  (9  Stat.  at  Large, 
240). 

On  Free-Soil  Party  see  16  Benton's  Debates  of  Con- 
gress;  I  Greeley's  American  Conflict,  191,  223;  2  Wil- 
son's Rise  and  Fall  of  the  Slave  Power,  129,  140,  150; 
International  Review,  August,  1881  (G.  W.  Julian's 
"Reminiscences  of  the  Thirty-first  Congress");  Gid- 
dings's  History  of  the  Rebellion,  283,  357;  2  Benton's 
Thirty  Years'  View,  723;  Schuckers'  Life  of  S.  P.  Chase  ; 
Burgess's  Middle  Period;  Woodburn's  Political  Parties 

1  See  Alien  and  Sedition  Laws. 


Political  Parties,  1824-1876          279 

and  Party  Problems,  ch.  vi. ;  Julian's  Life  of  Giddings  ; 
Curtis's  History  of  the  Republican  Party  ;  I  Hoar's  Auto- 
biography;  Gardiner's  Historical  Sketch  of  the  Free-Soil 
Question  (to  1848);  27  Democratic  Review,  531;  Tribune 
Almanac,  1849-55;  D.  S.  Dickinson's  Speeches;  authori- 
ties under  articles  referred  to;  the  platforms  of  the 
party  in  full  are  in  Greeley's  Political  Text-Book  of  1860, 
17,  21. 

On  Constitutional  Union  Party  see  2  Coleman's  Life 
of  Crittenden  ;  Botts's  Great  Rebellion  ;  I  Greeley' s  Amer- 
ican Conflict,  319;  and  authorities  under  Whig  Party, 
III. ;  Woodburn's  Political  Parties  and  Party  Problems  ; 
Rhodes;  Schouler;  Curtis's  History  of  the  Republican 
Party;  Greeley's  Political  Text-Book,  1860;  Elaine's 
Twenty  Years;  American  Historical  Review  on  Bell,  July, 
1899. 


CHAPTER   X 

THE  SECESSION   MOVEMENT 

FOLLOWING  the  strife  in  Kansas,  the  Dred  Scott 
decision,  and  the  Lecompton  struggle,  the  country 
began  Jx>  look  forward  with  intense  interest  to  the  politi- 
cal contest  of  1860.  Preliminary  to  this  were  the  by- 
elections  of  1858.  The  Lecompton  debate  in  Congress 
in  the  winter  and  spring  of  1858  brought  out  some  notable 
speeches  on  the  slavery  question,  in  a  debate  which  took 

—  ff       r _^__  i 

a  very  wide  range.  Especially  notable  among  these 
speeches  was  that  of  Benjamin,  in  defence  of  property 
rights  in  slaves,  March  u,  1858,  that  of  Collamer  and  of 
Fessenden  in  reply  to  Benjamin,  and  that  of  Seward, 
in  which  he  accused  Buchanan  and  Taney  of  collusion  in 
the  Dred  Scott  case.  Lincoln  had  made  a  notable  speech 
on  the  Dred  Scott  case,  defining  his  party's  attitude  to- 
ward the  decision,  on  June  26,  1857.  On  accepting  his 
party's  nomination  for  the  Illinois  Senatorship,  June  16, 
1858,  Lincoln  repeated  by  insinuation  Seward's  charge  of 
collusion. 

"  We  cannot  be  certain  of  preconcert.  But  when  we  see  a 
lot  of  framed  timbers,  different  portions  of  which  we  know 
have  been  gotten  out  at  different  times  and  places,  and  by 
different  workmen — Stephen,  Franklin,  Roger,  and  James, 
for  instance, — and  when  we  see  these  timbers  neatly  joined  to- 
gether, and  see  that  they  exactly  make  the  frame  of  a  house 
or  a  mill,  all  the  tenons  and  mortices  exactly  fitting,  and  all 
the  lengths  and  proportions  of  the  different  pieces  exactly 


The  Secession  Movement 

adapted  to  their  respective  places,  and  not  a  piece  too  many 
or  too  few, — or  if  a  single  piece  be  lacking,  we  see  the  place  in 
the  frame  exactly  fitted  and  prepared  yet  to  bring  such  a  piece 
in, — in  such  a  case  we  find  it  impossible  not  to  believe  that 
Stephen  and  Franklin  and  Roger  and  James  all  understood  one 
another  from  the  beginning,  and  all  worked  upon  a  common 
plan  or  draft  drawn  up  before  the  first  blow  was  struck." 

In  this  noted  speech,  at  the  opening  of  the  campaign  of 
the  famous  Lincoln-Douglas  debates,  Lincoln  used  the 
expression  afterwards  so  frequently  quoted  against  him 
by  the  Southern  disunionists,  as  an  evidence  that  emanci- 
pation in  the  States  was  intended  by  Lincoln's  party: 

"  This  Government,"  said  Lincoln,  "cannot  endure  perma- 
nently half  slave  and  half  free.  I  do  not  expect  the  Union  to 
be  dissolved;  I  do  not  expect  the  house  to  fall;  but  I  do  ex- 
pect that  it  will  cease  to  be  divided.  It  will  become  all  one 
thing  or  all  the  other.  Either  the  opponents  of  slavery  will  / 
arrest  the  further  spread  of  it,  and  place  it  where  the  public 
mind  will  rest  in  the  belief  that  it  is  in  the  course  of  ultimate 
extinction;  or  its  advocates  will  push  it  forward  till  it  shall 
become  alike  lawful  in  all  the  States,  old  as  well  as  new,  North 
as  well  as  South." 

Seward,  independent  of  Lincoln,  later  in  the  same  year 
(October  25,  1858),  in  a  campaign  speech  at  Rochester, 
made  essentially  the  same  utterance  in  his  famous  "irre- 
pressible conflict "  speech.  In  this  Seward  said  that  the 
sectional  struggle  in  which  the  country  was  then  engaged 
was  not  "accidental  or  unnecessary,  the  work  of  inter- 
ested or  fanatical  agitators.  It  is  an  irrepressible  conflict 
between  opposing  and  enduring  forces,  and  it  means  that 
the  United  States  must  and  will,  sooner  or  later,  become 
either  entirely  a  slaveholding  nation,  or  entirely  a  free- 
labor  nation."  This  utterance  was  denounced  at  the 
South  as  a  "brutal  and  bloody  manifesto,"  indicative  of 


282  The  Slavery  Controversy 

an  intention  on  the  part  of  the  Republican  party  forcibly 
to  wrest  the  Southern  slaves  from  their  masters.  These 
utterances  of  Lincoln  and  Seward  were  used  as  apologies 
by  the  South  for  safeguarding  their  slavery  interests  by 
secession  after  the  triumph  of  the  Republican  party  in 
1860. 

Another  notable  utterance  that  had  a  tremendous  in- 
fluence on  the  politics  of  the  times  came  from  Douglas, 
drawn  from  him  by  Lincoln's  searching  questions  in  the 
famous  Illinois  debates  of  1858.  This  was  Douglas's 
"doctrine  of  unfriendly  legislation"  set  forth  at  Freeport, 
August  27,  1858.  It  was  an  attempt  by  Douglas  to 
reconcile  his  doctrine  of  popular  sovereignty  with  loyal 
support  of  the  Dred  Scott  decision.  That  was  an  im- 
possible feat.  Lincoln  had  asked  Douglas:  "Can  the 
people  of  a  Territory,  in  any  lawful  way,  against  the  wish 
of  any  citizen  of  the  United  States,  exclude  slavery  from 
its  limits  prior  to  the  formation  of  a  State  constitution?  " 
The  Dred  Scott  decision  as  accepted  and  interpreted  by 
the  South  positively  denied  any  such  power.  Douglas 
answered  by  saying  that 

"it  matters  not  what  way  the  Supreme  Court  may  hereafter 
decide  as  to  the  abstract  question  whether  slavery  may  or  may 
not  go  into  a  Territory  under  the  Constitution;  the  people 
have  the  lawful  means  to  introduce  it  or  exclude  it  as  they 
please,  for  the  reason  that  slavery  cannot  exist  a  day  or  an 
hour  anywhere  unless  it  is  supported  by  local  police  regula- 
tions. If  the  people  are  opposed  to  slavery,  they  will  elect 
representatives  to  the  Territorial  Legislature  who  will  by  un- 
friendly legislation  effectually  prevent  the  introduction  of  it 
into  their  midst.  If,  on  the  contrary,  they  are  for  it,  their 
legislation  will  favor  its  extension. ' ' 

By  this  speech  Douglas  was  able  to  hold  the  Illinois 
Senatorship  and  defeat  Lincoln  in  1858;  but  Lincoln 
was  "gunning  for  larger  game,"  and  this  same  speech  of 


The  Secession  Movement 

Douglas  made  impossible  his  support  for  the  Presidency 
by  the  Southern  Democracy,  and  Douglas's  leadership 
and  candidacy  upon  this  uncertain  and  equivocal  platform 
became  the  factor  which  divided  the  Democratic  party 
in  1860.  By  the  schism  of  the  Democratic  party  at 
Charleston  the  last  tie  was  sundered  between  the  sec- 
tions, and  the  election  of  a  President  by  one  section  of 
the  country  alone  was  then  made  certain.  It  was  known 
at  the  South,  but  not  believed  at  the  North,  that  seces- 
sion and  disunion  would  follow.1 — ED. 

The  constitutional  apology  for  the  right  of  secession 
by  one  of  the  States  of  the  American  Union  may  be 
very  briefly  dismissed ;  it  is  entirely  dependent  upon  the 
theory  of  State  sovereignty."  Grant  that  the  States  are 
still  individually  sovereign ;  that  their  citizens  owe  a 
primary  allegiance  and  obedience  to  their  State,  and  a 
secondary  obedience  to  the  Federal  Government  because 
their  State  remains  a  member  of  the  Union;  that  the 
Union  is  a  voluntary  confederacy,  not  a  nation :  and  the 
right  of  secession  must  be  admitted  as  a  matter  of 
course.  The  advisability  of  secession,  the  propriety  of 
severing  the  ancient  relations  with  friendly  and  confed- 
erate States,  is  entirely  a  matter  for  the  State's  decision : 
when  the  decision  is  made,  every  law-abiding  citizen  is 
bound  by  his  allegiance  to  his  State  to  obey  it. 

However  fallacious  the  doctrine  of  State  sovereignty 
and  its  progeny,  secession,  may  be,  there  is  at  least  this 
apology  for  the  action  of  the  seceding  States  in  1 860-61 : 
that  the  doctrine  of  State  sovereignty,  in  both  its  pre- 
mises and  its  consequences,  had  been  familiar  almost  from 
antiquity;  that  its  technical  language  had  been  used 
constantly,  even  by  those  who  would  have  scouted  its  log- 
ical consequences,  and  that  the  system  of  negro  slavery, 
with  all  its  countless  influences,  had  shut  out  the  South 

1  See  Democratic  Party,  1860.  *  See  that  title. 


The  Slavery  Controversy 

from  that  educational  process  which  had  made  State 
sovereignty  either  a  meaningless  formula,  or  a  political 
heresy,  in  the  North  and  West. 

It  must  be  noticed,  however,  that  the  right  of  secession 
has  never  been  admitted  by  any  department  of  the  Na- 
tional Government:  joint  or  separate  resolutions  have 
been  passed  by  the  two  Houses  of  Congress,  asserting 
the  sovereignty  of  the  States ;  decisions  have  been  made 
by  the  Supreme  Court  of  much  the  same  character;  but 
the  right  of  secession  itself  has  never  been  admitted. 
Leaving  the  theory  of  State  sovereignty  to  be  con- 
sidered under  its  appropriate  head,  it  is  the  object  of 
this  chapter  to  trace  the  more  practical  idea  of  secession 
in  our  history:  I.,  as  a  mere  incident  of  particularism,  of 
State  sovereignty;  II.,  as  complicated  with  slavery;  and 
III.,  in  practice. 

I.  The  union  of  1643  '  experienced  in  miniature  most 
of  the  perils  to  which  the  perfected  and  national  Union 
was  afterward  exposed;  nullification  attacked  its  com- 
mercial regulations,  and  even  put  a  veto  on  its  wars ;  but 
its  final  disappearance  was  due  not  so  much  to  any  seces- 
sion as  to  the  inherent  weakness  of  its  nature,  and  the 
dislike  of  the  Crown.  With  the  introduction  of  the  at- 
tempt at  a  more  general  union  in  1754,'  the  idea  of  seces- 
sion first  comes  plainly  into  view.  The  plan  of  Franklin 
contemplated  its  establishment  by  act  of  Parliament,  a 
very  unusual  acknowledgment  of  the  power  of  Parlia- 
ment over  the  Colonies.  In  explanation  of  this  feature 
of  his  plan,  he  states  the  various  interests  of  the  Colonies, 
and  their  jealousy  of  one  another,  and  adds : 

"  If  ever  acts  of  assembly  in  all  the  Colonies  could  be  ob- 
tained for  that  purpose,  yet  as  any  Colony,  on  the  least  dis- 
satisfaction, might  repent  its  own  act,  and  thereby  withdraw 
itself  from  the  Union,  it  would  not  be  a  stable  one,  or  such  as 

1  See  New  England  Union.  *  See  Albany  Plan  of  Union. 


The  Secession  Movement  285 

could  be  depended  on;  for,  if  only  one  Colony  should,  on  any 
disgust,  withdraw  itself,  others  might  think  it  unjust  and  un- 
equal that  they,  by  continuing  in  the  union,  should  be  at  the 
expence  of  defending  a  Colony  which  refused  to  bear  its  pro- 
portionable part,  and  could  therefore  one  after  another  with- 
draw, till  the  whole  crumbled  into  its  original  parts. ' ' 

The  theory  of  secession  could  hardly  be  more  exactly 
stated;  in  its  final  application  in  practice  it  was  only 
improved  in  one  respect,  the  passage  of  the  ordinances 
of  secession  by  State  conventions,  instead  of  by  the 
assemblies. 

Accession  to,  and  secession  from,  any  union,  were  of 
course  equally  unconstitutional,  without  the  King's  con- 
sent, while  the  Colonies  remained  a  part  of  the  British 
Empire.  But,  as  the  American  Revolution  itself  was 
frequently  appealed  to  in  after  years,  as  the  first  great 
example  of,  and  precedent  for,  secession,  it  may  be  well 
to  lay  stress  here  on  one  essential  difference  between 
them,  that  the  former  was  an  exercise  of  the  undeniable 
right  of  revolution,  a  revolt  of  an  unrepresented  fraction 
of  the  empire  against  the  usurpations  of  Parliament,  and 
afterward  against  the  King  for  sustaining  Parliament ; 
while  the  latter  was  attempted  to  be  justified  as  a  consti- 
tutional right  of  the  States,  which  could  not  rightfully  be 
resisted  by  any  other  State,  by  all  the  other  States,  or  by 
the  Federal  Government.  A  revolt  of  a  Territory,  un- 
represented in  the  Federal  Government,  against  what  it 
might  consider  the  usurpation  of  the  Federal  Govern- 
ment, and  its  attempt  to  establish  a  separate  government, 
might  claim  the  American  Revolution  as  a  precedent ;  the 
seceding  States  in  1 860-61  could  not.  A  revolutionist 
hazards  his  life  upon  the  issue,  with  the  pains  and  penal- 
ties of  treason  as  a  possible  result ;  a  secessionist  claims 
all  the  advantages  of  revolution,  without  any  of  its  re- 
sponsibilities or  dangers. 


286  The  Slavery  Controversy 

Notwithstanding  the  early  and  general  dissemination 
of  the  theory  of  State  sovereignty,  its  practical  conse- 
quence, the  right  of  secession,  was  for  some  years  unheard 
of,  perhaps  unthought  of.  Until  1783  the  common  dan- 
gers of  war  were  a  fence  outside  of  which  none  of  the 
thirteen  States  dared  to  stray;  after  1783  the  authority 
of  the  Congress  of  the  Confederation  was  so  weak  a  fence 
that  none  of  the  States  cared  to  give  it  importance  by 
formally  demolishing  it.  The  ugly  word  "secession" 
first  appears  in  the  convention  of  1787,  July  5th,  though 
it  then  referred  to  the  States  as  represented  in  the  con- 
vention itself:  Gerry  remarked  that,  unless  some  com- 
promise should  be  made,  "a  secession,  he  foresaw,  would 
take  place."  The  subsequent  ratification  of  the  Consti- 
tution by  eleven  of  the  thirteen  States,  on  the  original 
refusal  of  Rhode  Island  and  North  Carolina  to  ratify,  has 
often  been  appealed  to  as  a  brilliant  example  of  peace- 
able secession ;  and  so  it  must  be  considered,  if  the  rati- 
fications were  really,  as  they  purported  to  be,  the  acts  of 
"sovereign  States." 

The  Articles  of  Confederation  had  expressly  provided 
that  no  change  should  be  made  in  them  unless  with  the 
assent  of  the  legislatures  of  every  State ;  and  yet,  in  the 
face  of  this  covenant,  eleven  of  the  States  not  only  formed 
a  new  government,  but  inserted  in  it  a  provision  for 
future  amendment  by  three  fourths  of  the  States.  On 
the  theory  that  the  States  were  sovereign  until  the  adop- 
tion of  the  Constitution,  how  can  such  a  proceeding  be 
anything  but  a  secession,  albeit  of  the  majority  from  the 
minority?  But  another  power  was  present  in  the  rati- 
fication, the  power  which  had  held  the  States  together 
even  before  the  adoption  of  the  Articles  of  Confedera- 
tion, the  sovereign  power  of  the  nation,  of  the  national 
people  as  distinguished  from  the  people  of  the  State. 
Its  non-recognition  by  the  State  conventions  cannot 
alter  the  fact  of  its  already  established  existence;  and, 


The  Secession  Movement  287 

without  its  existence,  the  assumptions  of  the  Continental 
Congress,  from  1775  until  the  ratification  of  the  Confed- 
eration in  1781,  would  be  even  a  more  colossal  sham  than 
the  ratification  of  the  Constitution. 

The  historic  truth  is,  that  the  people  of  the  nation, 
which  had  alone  validated  the  revolutionary  acts  of 
the  Continental  Congress,  and  which  had  tolerated  the 
Articles  of  Confederation,  had  now  at  last  interposed  to 
bring  order  out  of  chaos ;  that  it  was  disposed  to  deal 
very  tenderly  with  the  rights  and  even  with  the  prejudices 
of  the  peoples  of  the  several  States;  that  it  chose  to 
maintain  State  lines  in  the  ratifications;  but  that,  when 
nine  of  the  States,  including  a  heavy  majority  of  the 
territory,  wealth,  and  population  of  the  nation,  had 
expressed  their  decision  in  favor  of  the  new  form  of 
government,  factious  opposition  was  to  cease. 

It  is  true  that  the  status  of  the  possible  non-ratifying 
States  was  carefully  ignored  everywhere,  as  being  what 
the  Federalist  called  a  "delicate  question" ;  but  it  is  im- 
possible to  suppose  that  two,  or  even  four,  recalcitrant 
States  would  ever  have  been  allowed  to  escape  from  the 
national  jurisdiction.  Gouverneur  Morris's  warning  in 
the  convention  of  1787,  July  5th,  "This  country  must  be 
united;  if  persuasion  does  not  unite  it,  the  sword  will," 
which  provoked  so  much  contrary  feeling,  was  the  simple 
truth.  The  forms  of  ratification  would  never  have  been 
neglected;  but  ratification,  willing  or  unwilling,  would 
have  been  extorted  from  Rhode  Island  and  North  Caro- 
lina by  a  pressure  increasing  continually  until  finally 
successful.  The  passage  of  the  Senate  bill,  May  18, 
1790,  to  prohibit  bringing  goods,  wares,  and  merchandise 
from  the  State  of  Rhode  Island  "into  the  United  States," 
and  to  authorize  a  demand  of  arrears  of  money  from  the 
said  State,  is  a  fair  example  of  the  sort  of  pressure  which 
would  have  been  increased  indefinitely  but  for  the  ratifi- 
cation by  the  State  on  the  2gth  of  the  same  month. 


288  The  Slavery  Controversy 

The  nation  has  always  been  thus  gentle  and  considerate 
in  allowing  the  assertion  of  State  sovereignty  in  non- 
essentials  ;  in  essentials  State  sovereignty  must  yield  or 
be  crushed. 

Under  the  Constitution  the  Union  was  at  first  spared 
any  internal  dissensions  of  such  magnitude  as  to  suggest 
secession  as  a  remedy.  Projects  for  separation  from  the 
Union  were  undoubtedly  on  foot  before  1795  in  Ken- 
tucky and  in  western  Pennsylvania1 ;  but  these  were 
rather  the  product  of  frontier  freedom  from  restraint  than 
the  consequence  of  State  sovereignty.  Soon  after  1795 
a  series  of  articles  were  published  in  the  Connecticut  Cour- 
anty  urging  "the  impossibility  of  union  for  any  long 
period  in  the  future,"  and  laying  down  the  permanent 
dogma  that  "there  can  be  no  safety  to  the  Northern 
States  without  a  separation  from  the  Confederacy." 
These  letters  met  no  general  approval  in  the  North,  and 
the  election  of  Adams  to  the  Presidency  in  1796  took 
away  for  the  time  their  moving  cause,  a  fear  of  Southern 
domination  in  the  Federal  Government.  The  idea  of 
State  sovereignty,  with  secession  as  a  possible  conse- 
quence, next  appeared,  on  the  other  side  of  Mason  and 
Dixon's  line,  in  1798.' 

The  author  of  the  Kentucky  Resolutions,  Jefferson, 
explains  his  feeling  on  the  subject  of  secession  at  some 
length  in  his  letter  of  June  i,  1798,  to  John  Taylor: 

"  If,  on  a  temporary  superiority  of  the  one  party,  the  other 
is  to  resort  to  a  scission  of  the  Union,  no  Federal  Government 
can  ever  exist.  If,  to  rid  ourselves  of  the  present  rule  of 
Massachusetts  and  Connecticut,  we  break  the  Union,  will  the 
evil  stop  there?  Suppose  the  New  England  States  alone  cut 
off,  will  our  natures  be  changed?  Are  we  not  men  still  to  the 
south  of  that,  and  with  all  the  passions  of  men?  Immediately 
we  shall  see  a  Pennsylvania  and  a  Virginia  party  arise  in  the 

1  See  Whiskey  Insurrection.  8  See  Kentucky  Resolutions. 


The  Secession  Movement  289 

residuary  confederacy.  If  we  reduce  our  Union  to  Virginia 
and  North  Carolina,  they  will  end  by  breaking  into  their  simple 
units.  Seeing  that  we  must  have  somebody  to  quarrel  with, 
I  had  rather  keep  our  New  England  associates  for  that 
purpose." 

The  objections,  it  will  be  noticed,  lie  to  the  advisability, 
not  to  the  right,  of  secession.  This  defect,  however, 
was  common  to  most  of  the  public  men  of  the  time:  and 
for  years  afterward  State  sovereignty,  with  all  its  conse- 
quences, was  the  first  refuge  of  a  minority. 

The  existence  of  the  nation  was  hardly  recognized, 
even  by  the  courts,  for  twenty  years  after  1798,  though 
its  existence  was  not  often  denied  in  such  plain  language 
as  that  employed  by  Tucker,  in  his  edition  of  Blackstone 
in  1803.  After  summing  up,  to  his  own  satisfaction,  the 
proofs  that  Virginia  had  always  been  a  sovereign  State, 
and  enumerating  the  powers  which  Virginia  had  delegated 
to  the  Federal  Government,  he  thus  concludes : 

"  The  Federal  Government,  then,  appears  to  be  the  organ 
through  which  the  united  republics  communicate  with  foreign 
nations  and  with  each  other.  Their  submission  to  its  opera- 
tion is  voluntary:  its  councils,  its  engagements,  its  authority, 
are  theirs,  modified  and  united.  Its  sovereignty  is  an  emana- 
tion from  theirs,  not  a  flame  by  which  they  have  been  con- 
sumed, nor  a  vortex  in  which  they  are  swallowed  up.  Each  is 
still  a  perfect  State,  still  sovereign,  still  independent,  and  still 
capable,  should  the  occasion  require,  to  resume  the  exercise  of 
its  functions,  as  such,  to  the  most  unlimited  extent.  But, 
until  the  time  shall  arrive  when  the  occasion  requires  a  re- 
sumption of  the  rights  of  sovereignty  by  the  several  States 
(and  far  be  that  period  removed  when  it  shall  happen),  the 
exercise  of  the  rights  of  sovereignty  by  the  States  individually 
is  wholly  suspended,  or  discontinued,  in  the  cases  before  men- 
tioned; nor  can  that  suspension  ever  be  removed,  so  long  as 
the  present  Constitution  remains  unchanged,  but  by  the 

VOL.   II.— 19. 


290  The  Slavery  Controversy 

dissolution  of  the  bonds  of  union :  an  event  which  no  good 
citizen  can  wish,  and  which  no  good  or  wise  administration 
will  ever  hazard. ' ' 


Herein  is  contained,  for  the  first  time,  the  sum  and  sub- 
stance of  the  doctrine  of  secession. 

When  the  idea  of  secession  next  appeared,  it  was  again 
in  the  North,  and  closely  connected  with  the  question  on 
which  it  was  finally  put  into  practice  in  the  South,  the 
Territories  of  the  United  States.  The  acquisition  of 
Louisiana,  in  1803,  was  very  objectionable  to  the  Fed- 
eralist politicians  of  New  England.  They  had  been 
beaten  in  the  contest  with  the  South  alone :  to  re-enforce 
the  Southern  line  of  battle  with  six,  nine,  or  a  dozen 
future  States,  peopled  by  "the  wild  men  on  the  Mis- 
souri," seemed  simply  suicidal,  a  condemnation  of  New 
England  to  perpetual  nullity.  They  therefore  resisted 
the  annexation  to  the  utmost,  and  claimed  that,  as  the 
Constitution  was  made  only  for  the  original  territory 
comprised  within  the  United  States,  an  extension  of 
territory  was  unconstitutional  without  the  consent  of  all 
the  States.  "Suppose,  in  private  life,  thirteen  men  form 
a  partnership,  and  ten  of  them  undertake  to  admit  a  new 
partner  without  the  concurrence  of  the  other  three, 
would  it  not  be  at  their  option  to  abandon  the  partner- 
ship after  so  palpable  an  infringement  of  their  rights? 
How  much  more  so  in  the  political  partnership." 

The  annexation  was  consummated;  but  it  was  not 
until  January  14,  1811,  on  the  enabling  act  for  the  first 
of  the  dreaded  new  States,  Louisiana,  that  Quincy,  of 
Massachusetts,  fairly  declared,  in  the  House,  the  Fed- 
eralist conception  of  its  consequences.  "It  is  my  de- 
liberate opinion,  that,  if  this  bill  passes,  the  bonds  of 
this  Union  are  virtually  dissolved;  that  the  States  which 
compose  it  are  free  from  their  moral  obligations;  and 
that,  as  it  will  be  the  right  of  all,  so  it  will  be  the  duty 


The  Secession  Movement  291 

of  some,  to  prepare  definitely  for  a  separation,  amicably 
if  they  can,  violently  if  they  must."  Quincy  was  called 
to  order,  but  the  House  decided  that  he  was  in  order. 
Ex-President  Adams,  in  reply  to  a  copy  of  the  speech, 
could  only  say  that  "prophecies  of  division  had  been 
familiar  in  his  ears  for  six  and  thirty  years." 

In  the  meantime  the  opposition  to  the  Democratic 
administration,  confined  chiefly  to  the  New  England 
politicians  on  the  annexation  question,  had  become  more 
popular  with  the  introduction  of  the  restrictive  system.' 
It  is  beyond  question  that  some  project  of  secession  had 
been  mooted  in  New  England  in  1803,  though  probably 
confined  to  a  very  few;  and  that  Burr's  candidacy  for 
Governor  of  New  York  in  1804  was  a  part  of  it.  By 
taking  in  the  great  State  of  New  York,  and  by  yielding 
the  leadership-in-chief  to  a  New  York  Democrat,  who 
was  highly  popular  with  the  Democrats  of  New  England, 
it  was  hoped  that  a  new  republic  might  be  formed,  com- 
pact, homogeneous,  and  strongly  defended  by  nature  in 
every  direction.  Burr's  defeat  had  much  to  do  with  the 
failure  of  this  project,  but  the  indifference  of  the  people 
of  New  England  probably  more.  The  strong  and  general 
popular  feeling  which  was  aroused  by  the  embargo  re- 
vived the  project.  How  many  took  part  in  it  is  uncer- 
tain ;  they  were  probably  very  few. 

The  whole  truth  is  probably  expressed  in  a  letter  of 
Joseph  Story,  afterward  Supreme  Court  Justice,  January 
9,  1809:  "I  am  sorry  to  perceive  the  spirit  of  disaffection 
in  Massachusetts  increasing  to  so  high  a  degree;  and  I 
fear  that  it  is  stimulated  by  a  desire,  in  a  very  few  ambi- 
tious men,  to  dissolve  the  Union."  Henry's  letter,  of 
March  7,  1809,  goes  further,  and  details  the  Federalist 
programme  as  follows:  that,  in  the  event  of  war,  4'the 
Legislature  of  Massachusetts  will  declare  itself  permanent 
until  a  new  election  of  members;  invite  a  congress,  to 

1  See  Embargo,  III. 


292  The  Slavery  Controversy 

be  composed  of  delegates  from  the  Federal  States ;  and 
erect  a  separate  government  for  their  common  defence 
and  common  interest."  Henry's  assertions,  however, 
are  usually  only  proof  that  the  contrary  is  the  truth,  and 
that  is  probably  the  case  here.  It  is  only  certain  that 
the  accounts  of  the  feeling  in  the  Eastern  States,  as  given 
by  John  Quincy  Adams  and  Story,  caused  a  panic  among 
the  Democratic  leaders,  and  ended  the  embargo. 

During  the  War  of  1812  the  feeling  in  New  England 
grew  still  higher.  Ultra  Federalists  undoubtedly  used 
language  aiming  directly  at  secession;  the  student  will 
find  a  large  collection  of  such  utterances  in  Carey's  Olive 
Branch,  as  cited  among  the  authorities.  Indiscreet  refer- 
ences to  "the  New  England  nation,"  occasional  flaunt- 
ings  of  a  flag  with  five  stripes  and  stars,  the  firing  of 
"New  England  national  salutes"  of  five  guns,  and  other 
similar  indications,  when  combined  with  the  general  dis- 
content in  New  England,1  kept  the  Administration  in  a 
chronic  state  of  alarm. 

The  discussion  of  secession  in  any  form  by  the  Hart- 
ford Convention  has  been  denied  by  its  president  and 
secretary ;  its  journal  shows  no  trace  of  it ;  and  Mr. 
Goodrich  has  collected  every  available  proof  to  the  con- 
trary. It  appears  certain  that  no  such  active  design  was 
considered  or  desired  by  its  members ;  but  a  few  of  the 
opening  sentences  of  its  report  are  at  least  suggestive. 

"  If  the  Union  be  destined  to  dissolution,  by  reason  of  the 
multiplied  abuses  of  bad  administrations,  it  should,  if  possible, 
be  the  work  of  peaceable  times  and  deliberate  consent.  Some 
new  form  of  confederacy  should  be  substituted  among  those 
States  which  shall  intend  to  maintain  a  federal  relation  to  each 
other.  But  a  severance  of  the  Union  by  one  or  more  States, 
against  the  will  of  the  rest,  and  especially  in  a  time  of  war, 
can  be  justified  only  by  absolute  necessity." 

1  See  Convention,  Hartford. 


The  Secession  Movement  293 

The  report  concluded  by  advising,  that,  if  no  attention 
should  be  paid  to  their  remonstrances,  and  the  war  should 
continue,  a  new  convention  should  be  called  in  the  fol- 
lowing June,  "with  such  powers  and  instructions  as  the 
exigency  of  a  crisis  so  momentous  may  require." 

With  the  close  of  the  War  of  1812  the  first  period  of 
the  history  of  secession  ends.  It  continued  immanent  in 
the  doctrine  of  State  sovereignty;  but  nothing  occur- 
red to  call  it  to  active  life.  It  was  threatened  as  a 
possible  alternative  to  its  illegitimate  brother,  nullifica- 
tion,1 but  was  never  enforced.  Secessionists  proper  in 
South  Carolina  had  a  contempt  for  nullification,  and 
composed  the  so-called  "Union  party"  of  1831-3  in  that 
State.  Indeed,  Jackson's  nullification  proclamation  was 
offensive  to  them,  as  laying  down  "the  tyrannical  doc- 
trine that  we  have  not  even  the  right  to  secede." 

II.  Throughout  its  subsequent  history  secession  is 
always  connected  with  slavery  or  the  opposition  to  slav- 
ery. The  right  to  secede,  after  it  had  been  completely 
formulated  by  Tucker  in  1803,  was  asserted  again  and 
again  for  the  next  thirty  years,  but  always  as  a  mere 
particularist  formula,  a  corollary  of  State  sovereignty. 
The  most  striking  of  these,  and  particularly  as  coming 
from  the  North,  is  that  of  Judge  Rawle,  of  Pennsyl- 
vania, in  his  commentaries  on  the  Constitution,  as  cited 
below,  in  1825. 

"  The  secession  of  a  State  from  the  Union  depends  on  the 
will  of  the  people  of  such  State.  .  .  .  The  State  legis- 
latures have  only  to  perform  certain  organical  operations  in 
respect  to  it.  To  withdraw  from  the  Union  comes  not  within 
the  general  scope  of  their  delegated  authority.  But  in  any 
manner  by  which  a  secession  is  to  take  place,  nothing  is  more 
certain  than  that  the  act  should  be  deliberate,  clear,  and  un- 
equivocal; and  in  such  case  the  previous  ligament  with  the 
Union  would  be  legitimately  and  fairly  destroyed.  .  .  . 
1  See  that  title. 


294  The  Slavery  Controversy 

In  the  present  Constitution  there  is  no  specification  of  numbers 
after  the  first  formation.  It  was  foreseen  that  there  would  be 
a  natural  tendency  to  increase  the  number  of  States.  It  was 
also  known,  though  it  was  not  avowed,  that  a  State  might 
withdraw  itself.  The  number  would  therefore  be  variable. 
Secessions  may  reduce  the  number  to  the  smallest  integer  ad- 
mitting combination.  They  would  remain  united  under  the 
same  principles  and  regulations,  among  themselves,  that  now 
apply  to  the  whole.  For  a  State  cannot  be  compelled  by 
other  States  to  withdraw  from  the  Union,  and  therefore,  if 
two  or  more  determine  to  remain  united,  although  all  the 
others  desert  them,  nothing  can  be  discovered  in  the  Consti- 
tution to  prevent  it." 

It  is  notable  that,  so  late  as  November  9,  1860,  Horace 
Greeley  upheld  "the  practical  liberty,  if  not  the  abstract 
right,  of  secession,"  only  insisting  that  the  step  should 
be  taken  "with  the  deliberation  and  gravity  befitting  so 
momentous  an  issue." 

It  is  true  that  these  two  utterances  are  almost  the  only 
ones  from  a  representative  Northern  man  after  the  War 
of  1812  in  support  of  the  theory  of  secession;  and  that 
all  the  other  utterances  which  have  been  laboriously  col- 
lected are  simply  the  expression  of  State  feeling,  of  State 
opposition  to  the  annexation  of  Texas,  the  Fugitive 
Slave  Law,  and  similar  measures,  without  any  apparent 
thought  of  the  right  of  secession  which  was  involved  in 
it.  Nevertheless,  it  is  painful  to  consider  the  result 
which  would  have  followed  in  1 860-61,  if  the  action  of 
the  seceding  States  had  been  slow,  calm,  and  the  evident 
outcome  of  popular  desire,  instead  of  hasty,  violent,  and 
the  work  of  the  politicians.  In  that  event,  the  issue  of 
the  struggle  would  have  been  painfully  doubtful. 

Secession  came  in  again  with  Texas,  whose  independ- 
ent existence  was  itself  a  brilliant  instance  of  successful 
secession  from  the  Mexican  republic.  As  the  probability 
of  its  annexation  grew  stronger,  the  language  used  in  ad- 


The  Secession  Movement  295 

vocacy  of  or  in  opposition  to  it  grew  with  it.  March  3, 
1843,  John  Quincy  Adams  and  a  few  anti-slavery  Whigs 
issued  an  address  to  their  constituents,  warning  them 
that  the  annexation  project  had  never  been  given  up, 
and  that  it  would  result  in  and  fully  justify  a  dissolution 
of  the  Union.  Through  this  and  the  following  summer, 
on  the  other  hand,  "Texas  or  disunion"  became  a  fre- 
quently expressed  sentiment  in  the  South,  particularly  in 
South  Carolina,  but  this  died  away  as  the  success  of  an- 
nexation became  assured.  But  even  this  did  not  drive 
the  Northern  States  into  any  action  looking  to  secession, 
or  a  dissolution  of  the  Union,  though  this  was  unofficially 
suggested.  In  January,  1845,  at  an  anti-annexation  con- 
vention in  Boston,  Wm.  Lloyd  Garrison  urged  the  calling 
of  a  Massachusetts  convention  to  declare  the  Union  dis- 
solved, and  to  invite  other  States  to  join  with  her  in  a 
new  union  based  on  the  principles  of  the  Declaration  of 
Independence.  "Although,"  says  May,  "his  motion 
was  not  carried  by  the  convention,  it  was  received  with 
great  favor  by  a  large  portion  of  the  members  and  other 
auditors,  and  he  sat  down  amidst  the  most  hearty  bursts 
of  applause."  But  the  final  annexation  of  Texas,  operat- 
ing against  the  feelings  of  the  most  thoroughly  national- 
ized section  of  the  Union,  was  insufficient  to  call  forth 
any  dangerous  or  even  irritating  desire  for  a  dissolution 
of  the  Union.  That  was  reserved  for  the  question  of  the 
settlement  of  the  new  Territories.1 

Co-operation. — The  theory  of  secession  involved  the  right 
of  any  State  to  withdraw  from  the  Union  singly;  and  yet 
the  silent  proof  of  its  inherent  fallacy  is  that  single  seces- 
sion was  never  attempted,  and  probably  never  thought  of. 
In  1847  Calhoun  had  endeavored  unsuccessfully  to  obtain 
the  "co-operation"  of  the  slave  States  in  the  following 
programme :  I,  the  calling  of  a  slave-State  convention ;  2, 
the  exclusion  of  the  sea-going  vessels  of  the  Northern 

1  See  Wilmot  Proviso. 


296  The  Slavery  Controversy 

States  from  Southern  ports;  3,  the  prohibition  of  rail- 
road commerce  with  the  Northeastern,  but  not  with  the 
Northwestern,  States;  4,  the  present  maintenance  of  the 
freedom  of  trade  on  the  Mississippi;  5,  the  continuance 
of  this  interstate  embargo  system  until  the  Northwest 
should  be  "detached"  from  the  Eastern  States,  and 
should  unite  with  the  South  in  opening  the  new  Terri- 
tories to  slavery. 

Calhoun's  programme  opened  the  way,  however,  for  a 
bolder  idea  of  "co-operation"  in  1850,  according  to 
which  a  number  of  slave  States  were  to  secede  in  com- 
pany, for  mutual  defence,  if  any  prohibition  of  slavery 
in  the  new  Territories  should  be  enforced.  But  the 
Southern  States  held  to  the  resolutions  of  the  Georgia 
State  convention  of  1850,  declaring  that  the  State  ac- 
cepted the  Compromise  of  1850,  but  would  resist,  even  to 
secession,  such  anti-slavery  legislation  as  the  abolition  of 
slavery  in  the  District  of  Columbia,  or  in  the  Territories, 
or  of  the  interstate  slave-trade.  There  can  be  no  doubt 
that  South  Carolina  was  ready  to  secede  in  1850,  but  not 
alone.  Her  State  convention  of  April  26,  1852,  declared 
her  right  to  secede,  but  forbore  to  exercise  it,  out  of 
deference  to  the  wishes  of  other  slaveholding  States, 
that  is,  because  no  other  slaveholding  State  wished  to 
secede  with  or  after  her.  Co-operation  was,  therefore, 
never  practically  attempted,  because  of  the  Compromise 
of  1850,  by  which  the  Wilmot  Proviso  was  really  enforced 
in  California,  by  its  admission  as  a  free  State,  while  noth- 
ing was  said  of  it  in  the  organization  of  the  Territories  of 
Utah  and  New  Mexico,  and  the  Fugitive  Slave  Law  was 
accepted  by  the  South  as  a  make-weight.1  But,  though 
this  attempt  at  secession  by  a  section  was  unsuccessful, 
there  had  grown  up  an  alienation  between  the  North  and 
the  South  which  boded  no  good  for  the  future. 

Calhoun's  last  speech  in  the  Senate,  March  4,   1850, 

1  See  Compromises. 


The  Secession  Movement  297 

described  the  manner  in  which  many  of  the  multitudinous 
cords  that  bound  the  Union  together  had  already  snapped. 
Of  the  five  great  Christian  denominations  which  had 
been  national  in  their  organization,  two,  the  Methodists 
and  Baptists,  had  split  into  two  sectional  parts ;  and  the 
Presbyterians  were  evidently  close  to  the  point  of  division. 
Political  bonds  were  also  stretched  almost  to  breaking, 
and  their  preservation  depended  on  the  willingness  of  the 
Northern  States  to  satisfy  the  South  by  not  excluding 
slavery  from  the  Territories.  "If  you,"  says  Calhoun, 
"who  represent  the  stronger  portion,  cannot  agree  to 
settle  the  great  questions  at  issue  on  the  broad  principle 
of  justice  and  duty,  say  so;  and  let  the  States  we  both 
represent  agree  to  separate  and  depart  in  peace.  If  you 
are  unwilling  we  should  part  in  peace,  tell  us  so,  and  we 
shall  know  what  to  do."  The  last  sentence  shows  the 
remarkable  underlying  consciousness  in  every  advocate 
of  secession,  of  the  truth  so  forcibly  stated  by  Webster 
three  days  afterward:  "Secession!  Peaceable  secession! 
Sir,  your  eyes  and  mine  are  never  destined  to  see  that 
miracle.  The  dismemberment  of  this  vast  country  with- 
out convulsion  !  The  breaking  up  of  the  fountains  of  the 
great  deep  without  ruffling  the  surface !  Peaceable  seces- 
sion is  an  utter  impossibility." 

This  underlying  consciousness  that  secession  meant 
war  was  for  some  time  sufficient  to  make  any  attempt 
at  open  secession  hopeless  ab  initio,  and  no  such  attempt 
was  made.  Indeed,  the  South  had  been  very  well  satis- 
fied with  the  Compromise  of  1850;  and  the  impediments 
to  the  execution  of  the  Fugitive  Slave  Law,1  while  they 
excited  great  discontent  in  the  South,  were  not  com- 
monly looked  upon  as  reasonable  cause  for  secession. 
The  final  causes  were  three  in  number,  with  a  supple- 
mentary cause,  "coercion,"  which  will  be  stated  in  the 
next  section. 

1  See  Fugitive  Slave  Law,  Personal  Liberty  Laws. 


The  Slavery  Controversy 

i.  Nothing  was  more  noteworthy  in  the  extreme  South- 
ern States  than  the  sudden  development  of  large  estates, 
the  freezing  out  of  small  planters,  and  their  emigration 
after  the  absorption  of  their  property.  "In  a  few  years 
large  estates  are  accumulated  as  if  by  magic."  In  large 
sections  of  each  State  the  population  consisted  almost 
wholly  of  negroes,  with  the  few  whites  owning  or  man- 
aging them.  But  in  all  these  States  representation  was 
on  the  basis  of  the  "Federal  population"  :  that  is,  three 
fifths  of  the  negroes  were  represented,  while  the  voting 
and  office-holding  pertained  to  the  few  whites.  Thus, 
apart  from  the  natural  influence  belonging  to  the  wealthy 
class  of  the  population,  the  counties  in  the  "black 
belt"  were  practically  the  pocket  boroughs  of  the 
slave-owners  therein.  These  thus  held  far  more  than 
their  share  of  power  in  State  legislatures  and  conven- 
tions, and  in  some  States  absolutely  controlled  them. 
With  every  year,  from  1850  to  1860,  the  power  of  this 
class  was  growing  stronger,  and  their  desire  for  secession 
for  the  protection  of  their  property  in  slaves  was  not 
weakened.1 

/2.  But  there  was  still  another  and  much  larger  class  in 
the  South,  owning  few  or  no  slaves,  not  wedded  to  the 
protection  or  extension  of  slavery,  but  high-spirited,  and 
determined  not  to  submit  to  oppression,  or,  above  all, 
to  the  evasion  of  a  fair  compromise.  The  results  of 
the  passage  of  the  Kansas-Nebraska  Bill2  served  to  bring 
these  into  the  secession  programme.  They  had  never 
asked  for  the  abrogation  of  the  Missouri  Compromise; 
but,  when  it  had  been  abrogated  by  fair  agreement,  it 
seemed  to  them  an  unworthy  evasion  to  turn  Kansas 
and  Nebraska  into  free  States  by  organized,  not  vol- 
untary and  natural,  emigration  from  the  North.  This 
was  the  class  to  which  was  addressed  the  argument 
which  A.  H.  Stephens  says  carried  Georgia,  the 

1  See  Slavery,  IV.  8  See  that  title. 


The  Secession  Movement 

keystone  of  a  successful  secession,  out  of  the  Union : 
"We  can  make  better  terms  out  of  the  Union  than 
in  it." 

rf^The  Harper's  Ferry  insurrection  had  a  silent  in- 
fluence everywhere.  Those  who  desired  secession  were 
active,  persevering,  and  in  earnest;  those  who  did  not, 
were  at  the  best  negative;  for  they  saw  one  great  chance 
of  good,  even  in  a  successful  secession,  a  release  from 
national  association  with  future  John  Browns,  and  the 
ability  to  protect  themselves  from  such  invasions  by  open 
and  national  warfare. 

With  so  many  influences  at  work  in  its  favor,  it  is  mat- 
ter for  wonder  that  secession  in  1 860-61  was  only  forced 
through  by  the  influence  of  the  first  two  classes  over  the 
delegates  to  the  State  conventions,  and  that  the  popular 
demand  for  secession  was  so  conspicuous  by  its  absence 
that  the  conventions,  except  in  Texas,  did  not  venture  to 
submit  their  ordinances  to  popular  vote.  For,  in  a 
popular  vote,  be  it  remembered,  the  "Federal  represen- 
tation" disappeared;  only  the  votes  of  the  whites  went 
for  anything;  and  the  total  vote  of  the  State  might  very 
easily  show  that  their  nominal  representatives  did  not 
really  represent  them.  There  must  have  been  an  enor- 
mous mass  of  Union  feeling  in  the  South,  blind,  leader- 
less,  and  rendered  powerless  first  by  the  belief  that  their 
primary  allegiance  was  due  to  the  State,  and  then  by  the 
organization  of  the  new  national  government  at  Mont- 
gomery, but  still  genuine  and  hearty. 

III.  The  threat  that  secession  would  have  followed 
Fremont's  election,  in  1856,  was  probably  only  an  elec- 
tioneering device.  When  his  election  seemed  probable, 
Governor  Wise,  of  Virginia,  called  a  meeting  of  Southern 
governors  at  Raleigh,  for  October  I3th;  but  only  three 
governors  appeared,  those  of  Virginia,  North  Carolina, 
and  South  Carolina,  and  these  did  nothing.  The  meet- 
ing was  of  some  influence,  however,  upon  the  Northern 


300  The  Slavery  Controversy 

vote.1  Practical  secession  was  hardly  as  yet  possible. 
The  alienation  between  the  sections  was  not  yet  sufficient ; 
and  the  power  of  the  secessionist  class  over  the  State  con- 
ventions was  not  yet  great  enough.  Four  years  made  a 
great  difference  in  both  respects.  In  December,  1860, 
Senator  Iverson,  of  Georgia,  pictured  the  situation  in  the 
Senate  thus : 

' '  There  are  the  Republican  Northern  Senators  on  that  side. 
Here  are  the  Southern  Senators  on  this  side.  How  much 
social  intercourse  is  there  between  us?  You  sit  on  that  side, 
sullen  and  gloomy;  we  sit  on  ours  with  portentous  scowls. 
Yesterday  I  observed  there  was  not  a  solitary  man  on  that  side 
of  the  chamber  came  over  here,  even  to  extend  the  civilities 
and  courtesies  of  life;  nor  did  any  of  us  go  over  there.  Here 
are  two  hostile  bodies  on  this  floor,  and  it  is  but  a  type  of  the 
feeling  that  exists  in  the  two  sections.  We  are  enemies  as 
much  as  if  we  were  hostile  states.  I  believe  the  Northern 
people  hate  the  South  worse  than  ever  the  English  people 
hated  France;  and  I  can  tell  my  brethren  over  there  that 
there  is  no  love  lost  on  the  part  of  the  South." 

From  this  picture,  the  fact  is  carefully  eliminated  that 
the  Southern  Senators  represented,  not  the  Southern 
people,  but  its  slaveholding  class ;  but,  even  barring  this 
defect,  the  picture  is  well  worthy  of  study.  With  such  a 
tightly  strained  tension  of  inter-state  relations  between 
the  governments  of  the  two  sections,  the  real  feeling  of 
the  people  was  a  matter  of  but  secondary  importance, 
and  there  was  but  little  need  of  open  threats  of  secession 
in  case  of  Lincoln's  election.  Such  threats  were  un- 
doubtedly made,  but  unofficially;  and  the  question  of 
secession  played  no  formal  part  in  the  campaign  of  1860. 

The  whole  Congress  of  1859-61  was  inundated  by 
threats  of  secession  in  the  event  of  the  election  of  Seward 
as  President  in  1860,  the  object  seeming  to  be  to  commit 

1  See  Republican  Party,  I. 


The  Secession  Movement  301 

the  Southern  people  to  that  policy  beyond  the  possibility 
.of  an  honorable  withdrawal.  It  has  been  asserted  that 
the  disruption  of  the  Democratic  party,  in  1860,  was  con- 
trived by  the  secessionist  class  for  the  purpose  of  insur- 
ing Lincoln's  election,  and  thus  obtaining  an  excuse  for 
secession;  but  such  a  design  is  very  doubtful.'  The 
more  natural  explanation  of  their  course  is  in  their  hope 
that  the  electoral  vote  would  be  so  divided  up  as  to  give 
no  candidate  a  majority ;  that  the  choice  of  the  President 
would  thus  go  to  the  House  of  Representatives ;  and  that 
they  would  there  be  able  to  obtain  the  election  of  either 
Breckinridge  or  Bell.  That  their  hopes  had  some  foun- 
dation may  be  seen  from  the  facts  that  the  opposition 
to  Lincoln,  after  his  election,  still  controlled  both  Houses 
of  Congress;  and  that  the  Republicans,  throughout  the 
whole  Rebellion,  were  indebted  for  their  majority  in 
Congress  to  the  voluntary  absence  of  the  Southern 
delegations. 

As  it  resulted,  however,  Lincoln  obtained  the  electoral 
votes  of  all  the  Northern  and  Western  States,  with  the 
exception  of  a  part  of  New  Jersey's  vote,  and  was  elected 
beyond  cavil.  What  was  to  be  the  next  step  in  the 
political  game?  Were  the  Southern  States  to  go  on  de- 
bating about  co-operation,  without  taking  any  practical 
steps  toward  secession,  until  the  popular  impression 
caused  by  Lincoln's  election  had  worn  off,  and  his  ad- 
ministration was  found  to  be  nothing  out  of  the  ordinary? 
In  that  case,  the  idea  of  secession  might  as  well  be  laid 
permanently  on  the  shelf,  with  other  worn-out  political 
stage  thunder.  The  Southern  politician  class  felt  that, 
rather  than  give  up  what  they  had  grown  accustomed  to 
consider  the  only  life-preserver  of  their  section,  or  rather 
of  slavery,  they  would  prefer  to  go  over  the  cataract 
with  it. 

Nevertheless,  there  remained  that  dread  of  the  practical 

1  See  Democratic  Party,  V. 


The  Slavery  Controversy 

attempt  to  secede  by  a  single  State,  which  was  always 
the  surest  internal  condemnation  of  the  whole  theory  of 
secession.  Governor  Gist,  of  South  Carolina,  had  al- 
ready sent  a  circular  letter  to  the  other  Southern  gover- 
nors, October  5,  1860,  asking  their  advice  and  plans. 
His  State,  he  said,  would  secede  with  any  other  State,  if 
Lincoln  should  be  elected ;  or  she  would  secede  alone,  if 
she  should  receive  assurances  that  any  other  State  would 
follow  her;  "otherwise,  it  is  doubtful."  Not  one  gover- 
nor answered  that  his  State  would  secede  alone.  Florida, 
Alabama,  and  Mississippi  would  secede  with  any  other 
State;  North  Carolina  and  Louisiana  would  probably  not 
secede  at  all ;  Georgia  would  wait  for  some  overt  act.  At 
first  sight,  these  answers  seem  discouraging;  but  there 
was  hope  in  them.  If  three  States  were  only  waiting  for 
a  leader,  South  Carolina  would  take  the  plunge,  though 
the  gallantry  of  the  act  is  considerably  diminished  by 
this  preliminary  probing  for  assurances  of  support.  A 
movement  begun  even  by  four  States  would  probably 
swing  the  other  Gulf  States;  any  attempt  at  "coercion" 
by  the  Federal  Government  would  bring  the  border 
States;  and  the  Confederacy  of  the  slave  States  would 
then  be  complete. 

The  South  Carolina  Legislature,  which  chose  presiden- 
tial electors  until  1868,  was  in  session  to  choose  them, 
November  6,  1860,  and  remained  in  session  until  Lin- 
coln's election  was  assured.  It  then  called  a  State  con- 
vention, made  appropriations  for  the  purchase  of  arms, 
and  adjourned.  The  convention  met  at  Columbia,  De- 
cember 1 7th,  adjourned  to  Charleston,  on  account  of  an 
epidemic  in  Columbia,  and  there  unanimously  passed  the 
following  ordinance,  December  2Oth : 

"  We,  the  people  of  the  State  of  South  Carolina,  in  conven- 
tion assembled,  do  declare  and  ordain,  and  it  is  hereby  de- 
clared and  ordained,  that  the  ordinance  adopted  by  us  in 


-^— X. 

The  Secession  Movement          ^303 

* — * 

convention,  on  the  23d  day  of  May,  in  the  year  of  our  Lord 
1788,  whereby  the  Constitution  of  the  United  States  was  rati- 
fied, and  also  all  acts  and  parts  of  acts  of  the  General  Assembly 
of  this  State  ratifying  amendments  of  the  said  Constitution, 
are  hereby  repealed;  and  that  the  Union  now  subsisting  be- 
tween South  Carolina  and  other  States,  under  the  name  of  the 
United  States  of  America,  is  hereby  dissolved." 

On  the  24th  a  declaration  of  causes  for  secession  was 
adopted.  It  recapitulated  the  arguments  in  favor  of 
State  sovereignty  and  the  right  of  secession,  and  assigned 
as  a  cause  for  immediate  secession  the  general  hostility 
of  the  Northern  States  to  the  South,  as  shown  in  their 
union  under  a  sectional  party  organization,  and  in  their 
refusal  to  execute  the  fugitive  slave  laws ' ;  and  it  con- 
cluded with  an  imitation  of  the  closing  paragraph  of  the 
Declaration  of  Independence.  On  the  same  day  the 
Governor  by  proclamation  announced  the  fact  of  seces- 
sion. Having  adopted  ordinances  to  enforce  the  existing 
laws  of  the  United  States  for  the  present  under  State 
authority,  to  transfer  to  the  Legislature  the  powers 
hitherto  exercised  by  the  Federal  Government,  to  make 
the  State  ready  for  war,  and  to  appoint  commissioners  to 
form,  if  possible,  a  permanent  government  for  all  the 
States  which  should  secede,  the  convention  adjourned, 
January  5,  1861.  The  action  of  the  State  then  ceases  to 
relate  to  secession,  and  falls  under  other  heads.1 

The  action  of  Georgia^  comes  second  in  importance 
potlfically,  if  not~dironologically ;  for  the  rank,  wealth, 
and  position  of  the  State  would  have  made  its  persistent 
refusal  to  secede  a  most  annoying  brake  on  the  secession 
programme.  The  Legislature  called  a  State  convention, 
November  18,  1860,  and  the  whole  struggle  took  place 
on  the  election  of  delegates.  There  was  hardly  any 
denial  of  the  right  of  secession ;  but  a  strong  State  party, 
under  the  lead  of  Alexander  H.  Stephens,  warmly  denied 

1  See  Personal  Liberty  Laws.          *  See  Confederate  States,  Rebellion. 


304  The  Slavery  Controversy 

the  advisability  of  secession.  The  convention  met  at 
Milledgeville,  January  17,  1861,  and  on  the  following 
day,  by  a  vote  of  165  to  130,  declared  it  to  be  the  right 
and  the  duty  of  the  State  to  secede.  This  really  settled 
the  question.  January  igth,  the  formal  ordinance  of 
secession  was  adopted  by  a  vote  of  208  to  89.  In  order 
to  maintain  the  position  of  the  State,  every  delegate  but 
six  signed  the  ordinance ;  and  these  six  yielded  so  far  as 
to  pledge  themselves  to  the  defence  of  the  State.  After 
passing  the  other  necessary  ordinances  for  a  transfer  of 
powers  from  the  Federal  Government  to  the  Legislature, 
the  convention  adjourned,  but  re-assembled  in  Savan- 
nah , March  7th,  and  on  the  i6th  ratified  the  Confederate 
Constitution. 

In  Mississippi  the  convention  was  called  for  January 
/th,  at  Jackson,  and  passed  an  ordinance  of  secession  on 
the  9th  by  a  vote  of  84  to  15.  March  3Oth,  the  Confed- 
erate Constitution  was  ratified  by  a  vote  of  78  to  7. 
^\  In  Florida  the  Legislature  passed  the  bill  calling  a  con- 
vention, December  i,  1860,  and  the  convention  met  at 
Tallahassee,  January  3,  1861.  January  loth,  an  ordinance 
of  secession  was  passed  by  a  vote  of  62  to  7. 

In  Alabama  the  election  for  delegates  was  ordered  by 
the  Governor,  and  the  convention  met  at  Montgomery, 
January  7,  1861.  January  nth,  an  ordinance  of  seces- 
sion was  adopted  by  a  vote  of  61  to  39.  March  I3th,  the 
Confederate  Constitution  was  ratified. 
C  In  Louisiana  the  Legislature,  December  n,  1860, 
passed  the  bill  calling  a  convention,  and  it  met  at  Baton 
Rouge,  January  23,  1861.  January  26th,  an  ordinance 
of  secession  was  adopted  by  a  vote  of  113  to  17,  and  on 
March  2ist  the  Confederate  Constitution  was  ratified. 
Louisiana  was  the  only  original  seceding  State  in  which 
the  popular  vote  for  delegates  was  a  close  one.  It  is 
stated  at  20,448  for,  and  17,296  against,  immediate 
secession. 


The  Secession  Movement  305 

^  In  Texas,  secession  was  forced  through  with  great 
difficulty,  and  altogether  as  a  revolution.  The  Governor 
refused  to  call  an  extra  session  of  the  Legislature  until, 
early  in  January,  1861,  he  found  that  steps  were  being 
taken  to  call  it  together  without  his  authority.  He  then 
summoned  it  for  January  22d.  But  this  gave  very  little 
time  for  the  passage  of  a  convention  bill,  the  election  of 
delegates,  and  the  meeting  of  the  convention.  An  en- 
tirely unofficial  call  was  therefore  issued,  delegates  were 
elected,  and  the  convention  met  at  Austin,  January  28th. 
February  ist,  an  ordinance  of  secession  was  passed  by  a 
vote  of  166  to  7;  but,  as  the  convention  itself  was  en- 
tirely without  any  basis  of  law,  the  ordinance  was  to  be 
submitted  to  popular  vote,  February  23d.  The  Legisla- 
ture, February  4th,  validated  the  convention,  apparently 
with  a  view  to  overriding  a  possibly  adverse  popular 
majority.  The  popular  vote  was  reported  to  the  con- 
vention as  34,794  for  the  ordinance,  and  11,235  against 
it.  But  even  before  the  popular  ratification,  the  conven- 
tion had  appointed  delegates  to  the  Confederate  Con- 
gress, February  nth,  and  the  Federal  troops  in  the  State 
had  been  captured  and  paroled.  The  Confederate  Con- 
stitution was  ratified  March  23d.  One  week  before  that 
day  the  convention  had  declared  vacant  the  office  of 
Governor  Sam  Houston,  who  had  shown  no  inclination 
to  favor  the  convention  or  its  purposes. 

These  seven  States,  South  Carolina,  Mississippi,  Flor- 
ida, Alabama,  Georgia,  Louisiana,  and  Texas,  were  the 
original  seceding  States;  and  the  details  of  their  action 
seem  to  show  that  the  first  three  named  were  the  only 
ones  in  which  convention  action  represented  the  majority 
of  the  white  voters.  In  Georgia  and  Louisiana  the  re- 
sult was  due  to  the  lack  of  any  abiding  principle  in  the 
unionist  representatives  for  resistance  to  the  earnest  body 
of  secessionists ;  in  Alabama,  to  the  control  of  the  con- 
vention by  the  Southern  portion,  or  "black  belt";  and 


VOL.  H.— 20. 


306  The  Slavery  Controversy 

in  Texas,  to  the  revolutionary  action  of  the  secessionist 
politicians.  These  considerations,  however,  are  not  of 
much  practical  importance,  for  in  all  the  States  unionists 
and  secessionists  alike  acknowledged  the  abstract  right 
of  secession,  the  citizen's  paramount  allegiance  to  his 
State,  and  the  unconstitutionality  of  "coercion"  by  the 
Federal  Government.  The  secession  of  even  a  single 
State,  and  an  attempt  to  coerce  it,  would  therefore  have 
brought  about  the  secession  of  the  other  States  named, 
as  it  afterward  did  in  the  cases  of  Arkansas,  Tennessee, 
North  Carolina,  and  Virginia. 

Coercion. — It  is  noteworthy  that  originally  the  most 
extreme  particularists  had  the  least  objection  to  the  co- 
ercion of  a  State  by  the  Federal  Government.  In  writing 
to  Monroe,  August  n,  1786,  Jefferson  says:  "There 
never  will  be  money  in  the  Treasury  till  the  Confederacy 
shows  its  teeth.  The  States  must  see  the  rod :  perhaps 
it  must  be  felt  by  some  one  of  them.  .  .  .  Every 
rational  citizen  must  wish  to  see  an  effective  instrument 
of  coercion,  and  should  fear  to  see  it  on  any  other  ele- 
ment than  the  water."  And  still  more  fully,  August  4, 
1787:  "It  has  been  so  often  said  as  to  be  generally  be- 
lieved, that  Congress  have  no  power  by  the  Confedera- 
tion to  enforce  anything,  for  example,  contributions  of 
money.  It  was  not  necessary  to  give  them  that  power 
expressly ;  they  have  it  by  the  law  of  nature.  When  two 
parties  make  a  compact,  there  results  to  each  a  power  of 
compelling  the  other  to  execute  it."  This  was  the  gen- 
eral ground  on  which  the  Democratic  members  of  Con- 
gress, in  1861-5,  while  still  holding  the  Constitution  to 
be  a  "compact,"  voted  for  the  prosecution  of  the  war. 
It  may  also  explain  the  reason  why  both  the  Virginia 
and  New  Jersey  plans  in  1787'  included  a  power  to 
coerce  disobedient  States ;  and  why  Madison  and  others 
in  the  convention  wished  to  give  the  Federal  Gov- 

1  See  Convention  of  1787. 


The  Secession  Movement  307 

ernment  an  absolute  veto  on  the  legislation  of  State 
governments,  to  remove  the  necessity  for  any  forcible 
"coercion." 

Either  of  these  plans  would  have  been  hazardous. 
Madison  himself  said  that  "the  use  of  force  against  a 
State  would  look  more  like  a  declaration  of  war  than  an 
infliction  of  punishment,  and  would  probably  be  con- 
sidered by  the  party  attacked  as  a  dissolution  of  all  pre- 
vious compacts  by  which  it  might  be  bound."  This 
expression,  justified  as  it  is  by  common-sense,  has  often 
been  quoted  as  a  condemnation  of  "coercion."  But  it 
must  be  noted  that  no  such  "use  of  force  against  a 
State"  was  ever  authorized  by  the  Constitution.  That 
instrument  gave  an  indirect  and  far  safer  power  of  coer- 
cion, i,  in  the  case  of  States,  by  extending  the  power  of 
the  Federal  judiciary  to  State  laws  involving  the  con- 
struction of  the  Constitution1 ;  and  2,  by  giving  the  power 
to  compel  individuals  to  obey  the  Federal  Government 
in  any  conflict  with  the  State. 

Nevertheless  the  opinion  was  strangely  prevalent  in 
1 860-61,  that,  because  Congress  had  no  power  to 
"coerce"  a  State,  secession  could  not  be  interfered  with. 
The  simplest  argument  for  this  view  can  be  found  in 
President  Buchanan's  message  of  December  3,  1860.  It 
was  the  main  encouragement  to  secession  by  a  single 
State ;  it  was  announced  again  and  again  by  the  border 
States  during  the  winter  of  1 860-61 ;  and  the  conscious- 
ness of  its  general  existence  threw  the  Lincoln  Adminis- 
tration at  first  altogether  upon  the  defensive.  It  was  not 
until  the  popular  uprising  in  the  North  had  taught  the 
Administration  what  States  it  could  rely  upon  that  the 
Federal  Government  was  encouraged  to  begin  the  work 
of  coercion  by  exercising  its  power  to  execute  the  laws 
and  suppress  insurrection  by  means  of  the  armed  militia. 
From  that  time  coercion  took  the  form  of  repression  of 

1  See  Judiciary,  I. 


308  The  Slavery  Controversy 

individual  resistance,  the  Federal  Government  ignoring 
the  action  of  the  State  as  entirely  ultra  vires. 

This  is  the  form  which  coercion  took  in  its  first  opera- 
tion in  our  history,  the  "force  bill"  of  1833,'  and  which 
it  must  always  take.  If  a  State  should  see  fit  to  form  a 
treaty  with  a  foreign  power,  the  Federal  Government 
would  ignore  such  action,  and  would  compel  individuals 
to  ignore  it  also,  by  the  use  of  the  courts  in  cases  of 
mild  resistance,  and  of  the  army  and  navy  in  case  of  re- 
sistance by  force.  This  process  of  "coercion"  could 
hardly  be  better  stated  than  in  a  pamphlet  cited  below, 
by  Gov.  H.  A.  Wise,  of  Virginia,  published  in  1859, 
though  aimed  at  a  very  different  object.  He  supposes 
the  State  of  Vermont  gradually  coming  to  forcible  resist- 
ance against  the  execution  of  the  fugitive  slave  laws, 
her  State  convention  making  the  arrest  of  a  slave  felony, 
and  her  magistrates  and  officers  resisting  the  Federal 
writs  of  habeas  corpus  by  force. 

"  The  President  must  then  command  a  sufficient  force  of 
the  army  or  navy  or  militia  of  the  United  States  to  overcome 
the  rebellion  and  treason;  and  that  would  not  be  all.  The 
jailor  and  judges  and  governor  of  Vermont,  and  all  persons 
guilty  with  them  of  rebellion  against  the  faithful  execution  of 
the  laws  of  the  United  States,  would  have  to  be  arrested  and 
tried  according  to  law,  or,  if  their  resistance  were  serious 
enough  to  require  it,  to  be  slain  in  battle  or  rebellion  against 
the  laws  of  the  Union.  And  I  am  sure,  that,  if  civil  war  should 
thus  be  brought  on  to  battle  and  carnage,  every  patriot  and 
lover  of  the  laws  would  march  to  the  order  of  coercing  a  State, 
to  compel  her  authorities  and  her  people  to  obey  the  supreme 
laws,  to  lay  down  their  weapons,  and  to  renounce  the  State 
laws  and  ordinances  commanding  their  rebellion." 

Voluntary  secession  had  really  spent  its  force  in  carry- 
ing Georgia,  Alabama,  Louisiana,  and  Texas  with  it; 

1  See  Nullification. 


The  Secession  Movement  309 

but  it  relied  on  carrying  the  other  slave  States  with  it  on 
the  plea  of  resistance  to  coercion,  when  President  Lincoln 
should  call  for  troops  to  enforce  the  laws.  In  two  of 
them  it  succeeded  fairly:  Arkansas  passed  an  ordinance 
of  secession  May  6th,  and  North  Carolina  May  2Oth.  In 
Virginia  and  Tennessee  another  plan  had  to  be  adopted. 
The  convention,  while  nominally  submitting  the  ordi- 
nance of  secession  to  popular  vote,  first  formed  "military 
leagues"  with  the  Confederate  States;  Confederate 
troops  at  once  swarmed  over  their  territory ;  and  under 
their  auspices  the  popular  vote  became  a  farce.  In  this 
way  Virginia's  ordinance  was  ratified  May  23d,  and  Ten- 
nessee's June  1 8th.  Here  the  current  stopped :  in  Mary- 
land, Kentucky,  and  Missouri  much  the  same  plan  was 
tried  as  in  Texas,  but  it  was  a  failure.1  In  Delaware 
alone  of  the  slave  States,  secession  seems  to  have  had  no 
advocates. 

The  United  States  Supreme  Court  has  finally  decided 
that  the  ordinances  of  secession  were  entirely  void,  and 
that  a  State  government  steps  out  of  its  sphere  when  it 
undertakes  to  organize  armed  resistance  to  the  Federal 
Government.  Reconstruction  by  Congress  does  not 
seem  to  have  been  founded  on  the  notion  that  the  ordi- 
nances of  secession  had  so  far  taken  the  States  out  of  the 
Union  as  to  require  their  readmission,  but  on  the  theory 
that  the  State  governments  had  either  been  vacated  by 
the  fault  of  the  individual  citizens  of  the  State,  or  had 
been  seized  upon  by  usurpers;  that  in  either  case  the 
reconstruction  must  be  under  the  authority  of  the  Fed- 
eral Government;  and  that  individuals  who  had  been 
guilty  of  treason  were  estopped  from  objecting  to  the 
methods  which  Congress  might  see  fit  to  employ.* 

Finally,  the  suppression  of  the  doctrine  of  secession  by 
force  has  established  the  political  existence  of  the  nation, 
as  distinguished  even  from  all  the  States.  It  has  done 

1  See  those  States.  •  See  Reconstruction,  I. 


3*0  The  Slavery  Controversy 

so,  not  by  the  facts  that  all  the  seceding  States,  in  their 
new  constitutions,  expressly  disavowed  any  right  of 
secession,  and  declared  the  primary  allegiance  of  the  in- 
dividual citizen  to  be  due  to  the  United  States ;  but  by 
the  higher  fact  that  the  nation  has  plainly  expressed  and 
successfully  enforced  its  will  in  the  matter.  For  the 
future,  all  men  are  bound  to  take  notice  that  it  is  the 
nation  that  wills  that  there  should  be  State  governments, 
and  not  States  which  will  that  there  should  be  a  National 
Government.  The  ultimate  results  of  secession  in  this 
way  no  man  can  foresee.1 

The  theory  of  the  right  of  secession  will  be  found  in 
Centz's  Republic  of  Republics;  Fowler's  Sectional  Contro- 
versy ;  i  Calhoun's  Works,  300;  I  Tucker's  Blackstone, 
Appendix,  187;  I  Stephens's  War  Between  the  States ', 
495 ;  Rawle's  Commentaries  on  the  Constitution,  302 ; 
Appleton's  Annual  Cyclopedia,  1861,  614  (Davis 's  Mes- 
sage of  April  29th).  The  study  of  Mr.  Fisher's  theory 
of  "constitutional  secession,"  by  amicable  agreement 
between  the  Federal  Government  and  a  seceding  State, 
will  also  be  found  interesting  and  profitable :  see  Fisher's 
Trial  of  the  Constitution,  160,  167.*  See  also  (I.)  authori- 
ties under  New  England  Union,  and  Albany  Plan  of 
Union;  5  Elliot's  Debates,  276,  278;  I  Benton's  Debates 
of  Congress,  172;  4  Jefferson's  Works,  edit.  1853,  in; 

1  von  Hoist's  United  States,  196;  authorities  under  Ken- 
tucky Resolutions;  3  Jefferson's  Works,  edit.  1830,  394; 

2  Schouler's  United  States,  192;  Quincy's  Life  of  Quincy , 
206,  210;  Adams's  Documents  Relating  to  New  England 
Federalism  (see,  under  index,  "Northern  Confederacy"); 
4  Upham's  Life  of  Pickering,  53;  3  Sparks's   Writings 
of  Gouverneur  Morris,  319;  I  Story's  Life  of  Story,  182; 
8  Niles's  Weekly  Register,  262;  Carey's  Olive  Branch,  7th 
edit.,  416,449;  Hunt's  Life  of  Livingston,  346;  authori- 

1  See  Nation,  III.  *  See  State  Sovereignty,  III. 


The  Secession  Movement  311 

ties  under  Convention,  Hartford,  and  Nullification;  (II.) 
i  Greeley's  American  Conflict,  359;  May's  Anti-Slavery 
Conflict,  320;  2  Benton's  Thirty  Years'  View,  613,  698, 
733;  Cox's  Eight  Years  in  Congress,  188;  16  Benton's 
Debates  of  Congress,  403,  415  (Calhoun's  and  Webster's 
speeches,  March  4  and  7,  1850);  2  Olmsted's  Cotton 
Kingdom,  158;  (III.)  Nicolay's  Outbreak  of  Rebellion;  I 
Draper's  Civil  War,  438,  and  2  ibid.  ;  Buchanan  s  Ad- 
ministration, 108;  Greeley's  Political  Text-Book  of  1860, 
170;  McPherson's  Political  History  of  the  Rebellion,  2;  2 
Stephens' s  War  Between  the  States,  312;  ibid.,  671  (South 
Carolina  declaration  of  1861);  2  Jefferson's  Works,  edit. 
1830,  43,  203;  H.  A.  Wise's  Territorial  Government,  103; 
Botts's  Great  Rebellion,  205,  209;  Brownson's  American 
Republic,  277;  Story's  Commentaries  on  the  Constitution, 
edit.  1833,  §  359;  Mulford's  The  Nation,  334;  Good- 
win's Natural  History  of  Secession;  Kurd's  Theory  of 
Our  National  Existence. 


CHAPTER  XI 

THE  CONFEDERACY  AND  STATE  SOVEREIGNTY 

THE  CONFEDERATE  STATES  was  the  government 
formed  in  1861  by  the  seven  States  which  first  seceded. 
Belligerent  rights  were  accorded  to  it  by  the  leading  naval 
powers,  but  it  was  never  recognized  as  a  government,  not- 
withstanding the  persevering  efforts  of  its  agents  near 
the  principal  courts.  This  result  was  mainly  due  to  the 
diplomacy  of  the  Federal  Secretary  of  State,  Wm.  H. 
Seward,  to  the  proclamations  of  emancipation  in  1862-3, 
which  secured  the  sympathy  of  the  best  elements  of 
Great  Britain  and  France  for  the  Federal  Government, 
and  to  the  obstinate  persistence  of  the  Federal  Govern- 
ment in  avoiding,  so  far  as  possible,  any  recognition  of 
the  existence,  even  de  facto,  of  a  Confederate  govern- 
ment. The  Federal  generals  in  the  field,  in  their  com- 
munications with  Confederate  officers,  did  not  hesitate, 
upon  occasion,  even  to  give  "President"  Davis  his  official 
title,  but  no  such  embarrassing  precedent  was  ever  ad- 
mitted by  the  Civil  Government  of  the  United  States.  It 
at  first  endeavored,  until  checked  by  active  preparations 
for  retaliation,  to  treat  the  crews  of  Confederate  priva- 
teers as  pirates;  it  avoided  any  official  communication 
with  the  Confederate  Government,  even  when  compelled 
to  exchange  prisoners,  confining  its  negotiations  to  the 
Confederate  Commissioners  of  Exchange;  and,  by  its 
persistent  policy  in  this  general  direction,  it  succeeded, 
without  any  formal  declaration,  in  impressing  upon  for- 

312 


Confederacy  and  State  Sovereignty   3*3 

eign  governments  the  belief  that  any  recognition  of  the 
Confederate  States  as  a  separate  people  would  be  actively 
resented  by  the  Government  of  the  United  States  as  an 
act  of  excessive  unfriendliness.1 

The  Federal  courts  have  steadily  held  the  same  ground, 
that  "the  Confederate  States  was  an  unlawful  assemblage, 
without  corporate  power"  ;  and  that,  though  the  separate 
States  were  still  in  existence  and  were  indestructible, 
their  State  governments,  while  they  chose  to  act  as  part 
of  the  Confederate  States,  did  not  exist,  even  de  facto. 

Early  in  January,  1861,  while  only  South  Carolina  had 
actually  seceded,  though  other  Southern  States  had  called 
conventions  to  consider  the  question,  the  Senators  of  the 
seven  States  farthest  south  practically  assumed  control  of 
the  whole  movement ;  and  their  energy  and  unswerving 
singleness  of  purpose,  aided  by  the  telegraph,  secured  a 
rapidity  of  execution  to  which  no  other  very  extensive 
conspiracy  of  history  can  afford  a  parallel.  The  ordi- 
nance of  secession  was  a  negative  instrument,  purporting 
to  withdraw  the  State  from  the  Union  and  to  deny  the 
authority  of  the  Federal  Government  over  the  people  of 
the  State;  the  cardinal  object  of  the  senatorial  group 
was  to  hurry  the  formation  of  a  new  national  govern- 
ment, as  an  organized  political  reality  which  would  rally 
the  outright  secessionists,  claim  the  allegiance  of  the 
doubtful  mass,  and  coerce  those  who  still  remained 
recalcitrant. 

At  the  head  of  the  senatorial  group,  and  of  its  execu- 
tive committee,  was  Jefferson  Davis,  Senator  from  Mis- 
sissippi, and  naturally  the  first  official  step  toward  the 
formation  of  a  new  government  came  from  the  Mississippi 
Legislature,  where  a  committee  reported,  January  19, 
1861,  resolutions  in  favor  of  a  congress  of  delegates  from 
the  seceding  States  to  provide  for  a  Southern  Confed- 
eracy, and  to  establish  a  provisional  government  therefor. 

1  See  Secession,  Emancipation  Proclamation,  Alabama  Claims. 


3H  The  Slavery  Controversy 

The  other  seceding  States  at  once  accepted  the  proposal, 
through  their  State  conventions,  which  also  appointed 
the  delegates  on  the  ground  that  the  people  had  in- 
trusted the  State  conventions  with  unlimited  powers. 
The  new  government,  therefore,  began  its  existence  with- 
out any  popular  representation,  and  with  only  such 
popular  ratification  as  popular  acquiescence  gave.1 

The  provisional  congress  met,  February  4th,  at  Mont- 
gomery, Ala.,  with  delegates  from  South  Carolina,  Geor- 
gia, Alabama,  Louisiana,  Florida,  and  Mississippi.  The 
Texas  delegates  were  not  appointed  until  February  I4th. 
February  8th,  a  provisional  constitution  was  adopted, 
being  the  Constitution  of  the  United  States,  with  some 
changes.  February  9th,  Jefferson  Davis,  of  Mississippi, 
was  unanimously  chosen  provisional  President,  and  Alex- 
ander H.  Stephens,  of  Georgia,  provisional  Vice-President, 
each  State  having  one  vote,  as  in  all  other  proceedings 
of  this  body.  By  acts  of  February  9th  and  I2th  the  laws 
and  revenue  officers  of  the  United  States  were  continued 
in  the  Confederate  States  until  changed.  February  i8th, 
the  President  and  Vice-President  were  inaugurated.  Feb- 
ruary 2Oth-26th,  executive  departments  and  a  Confeder- 
ate regular  army  were  organized,  and  provision  was  made 
for  borrowing  money.  March  nth,  the  permanent  con- 
stitution was  adopted  by  congress.  It  generally  follows 
the  Constitution  of  the  United  States,  substituting  "Con- 
federate States"  for  "United  States,"  "Confederacy" 
for  "Union,"  and  (in  Art.  VI.)  "provisional  govern- 
ment" for  "  Confederation. " 

The  other  changes  are  as  follows : 

(Preamble)-.  'We,  the  people  of  the  Confederate 
States,  each  State  acting  in  its  sovereign  and  independ- 
ent character,  in  order  to  form  a  permanent  federal 
government,  establish  justice,  insure  domestic  tranquil- 
lity, and  secure  the  blessings  of  liberty  to  ourselves  and 
1  See  Declaration  of  Independence. 


Confederacy  and  State  Sovereignty    315 

our  posterity — invoking  the  favor  and  guidance  of  Al- 
mighty God — do  ordain  and  establish  this  constitution 
for  the  Confederate  States  of  America." 

(Art.  I.):  In  §  I,  "delegated"  is  substituted  for 
"granted."  In  §  2,  T  i,  the  words  "be  citizens  of  the 
Confederate  States,  and"  are  added  after  the  words  "the 
electors  in  each  State  shall. "  In  §  2,  ^[  3,  "  fifty  thousand" 
is  substituted  for  "thirty  thousand"  ;  "slaves"  is  substi- 
tuted for  "other  persons";  and  the  following  change  is 
made  in  the  conclusion:  "the  State  of  South  Carolina 
shall  be  entitled  to  choose  six,  the  State  of  Georgia  ten, 
the  State  of  Alabama  nine,  the  State  of  Florida  two,  the 
State  of  Mississippi  seven,  the  State  of  Louisiana  six, 
and  the  State  of  Texas  six."  In  §  2,  *|~  5,  there  is  added : 
"except  that  any  judicial  or  other  Federal  officer,  resi- 
dent and  acting  solely  within  the  limits  of  any  State,  may 
be  impeached  by  a  vote  of  two  thirds  of  both  branches  of 
the  Legislature  thereof."  In  §  4,  1"  I,  the  words  "sub- 
ject to  the  provisions  of  this  constitution"  are  added 
after  the  word  "thereof";  and  there  is  substituted 
"times  and  places"  for  "place."  In  §  6,  ^[  I,  the  word 
"felony"  is  omitted.  In  §6,  ^f  2,  there  is  added:  "But 
Congress  may,  by  law,  grant  to  the  principal  officer  in 
each  of  the  executive  departments  a  seat  upon  the  floor 
of  either  House,  with  the  privilege  of  discussing  any 
measure  appertaining  to  his  department."  In  §  7,  1"  2, 
there  is  added:  "The  President  may  approve  any  appro- 
priation and  disapprove  any  other  appropriation  in  the 
same  bill.  In  such  case  he  shall,  in  signing  the  bill, 
designate  the  appropriations  disapproved ;  and  shall  re- 
turn a  copy  of  such  appropriations,  with  his  objections, 
to  the  House  in  which  the  bill  shall  have  originated ;  and 
the  same  proceedings  shall  then  be  had  as  in  case  of  other 
bills  disapproved  by  the  President."  In  §  8,  1"  I,  there 
is  inserted  "for  revenue  necessary,"  before  the  words  "to 
pay,"  and  instead  of  the  words  "and  general  welfare  of 


3*6  The  Slavery  Controversy 

the  United  States;  but"  there  is  substituted  the  follow- 
ing: "and  carry  on  the  government  of  the  Confederate 
States;  but  no  bounties  shall  be  granted  from  the  Treas- 
ury, nor  shall  any  duties  or  taxes  on  importations  from 
foreign  nations  be  laid  to  promote  or  foster  any  branch 
of  industry."  In  §  8,  1"  3,  there  is  added: 

"  but  neither  this,  nor  any  other  clause  contained  in  the  con- 
stitution, shall  be  construed  to  delegate  the  power  to  Congress 
to  appropriate  money  for  any  internal  improvement  intended 
to  facilitate  commerce;  except  for  the  purpose  of  furnishing 
lights,  beacons,  and  buoys,  and  other  aids  to  navigation  upon 
the  coasts,  and  the  improvement  of  harbors,  and  the  removing 
of  obstructions  in  river  navigation;  in  all  which  cases,  such 
duties  shall  be  laid  on  the  navigation  facilitated  thereby,  as 
may  be  necessary  to  pay  the  costs  and  expenses  thereof. ' ' 

In  § 8,  T 4,  there  is  added :  "but  no  law  of  Congress  shall 
discharge  any  debt  contracted  before  the  passage  of  the 
same."  In  §  8,  ^[  7,  there  is  added:  "but  the  expenses 
of  the  postoffice  department,  after  the  first  day  of  March, 
in  the  year  of  our  Lord  eighteen  hundred  and  sixty- 
three,  shall  be  paid  out  of  its  own  revenues. "  Instead 
°f  §  9>  T  !»  there  are  substituted  two  paragraphs  as  fol- 
lows: "i.  The  importation  of  negroes  of  the  African 
race,  from  any  foreign  country,  other  than  the  slave- 
holding  States  and  Territories  of  the  United  States  of 
America,  is  hereby  forbidden,  and  Congress  is  required 
to  pass  such  laws  as  shall  effectually  prevent  the  same. 
2.  Congress  shall  also  have  power  to  prohibit  the  intro- 
duction of  slaves  from  any  State  not  a  member  of,  or 
Territory  not  belonging  to  this  Confederacy."  1"  2  thus 
becomes  T  3,  and  ^[  3  becomes  T  4,  inserting  in  it  "or 
law  denying  or  impairing  the  right  of  property  in  negro 
slaves,"  after  "  ex  post  facto  law."  *|[  4  becomes  T  5,  and 
T  5  becomes  ^[  6,  adding  thereto  "except  by  a  vote  of 
two-thirds  of  both  Houses."  T  6  becomes  \  7,  omitting 


Confederacy  and  State  Sovereignty    317 

the  last  sentence,  "nor  shall  vessels,"  etc.  T  7  becomes 
^  8,  and  ^f  8  becomes  T  11,  two  new  paragraphs  being 
inserted,  as  follows: 

"9.  Congress  shall  appropriate  no  money  from  the  treasury 
except  by  a  vote  of  two-thirds  of  both  Houses,  taken  by  yeas 
and  nays,  unless  it  be  asked  and  estimated  for  by  some  one 
of  the  heads  of  departments,  and  submitted  to  Congress  by 
the  President;  or  for  the  purpose  of  paying  its  own  expenses 
and  contingencies;  or  for  the  payment  of  claims  against  the 
Confederate  States,  the  justice  of  which  shall  have  been 
judicially  declared  by  a  tribunal  for  the  investigation  of  claims 
against  the  Government,  which  it  is  hereby  made  the  duty  of 
Congress  to  establish.  10.  All  bills  appropriating  money  shall 
specify  in  Federal  currency  the  exact  amount  of  each  appro- 
priation and  the  purposes  for  which  it  is  made;  and  Congress 
shall  grant  no  extra  compensation  to  any  public  contractor, 
officer,  agent,  or  servant,  after  such  contract  shall  have  been 
made  or  such  service  rendered." 

Amendments  I. -VIII.  of  the  Constitution  are  inserted 
as  Tl"  I2~I9»  and  a  new  paragraph  added,  as  follows: 
"20.  Every  law,  or  resolution  having  the  force  of  law, 
shall  relate  to  but  one  subject,  and  that  shall  be  expressed 
in  the  title."  In  §  10,  *![  i,  the  words  "emit  bills  of 
credit"  are  omitted.  In  §  10,  ^[  3,  there  is  inserted, 
after  the  word  "tonnage"  :  "except  on  sea-going  vessels, 
for  the  improvement  of  its  rivers  and  harbors  navigated 
by  the  said  vessels;  but  such  duties  shall  not  conflict 
with  any  treaties  of  the  Confederate  States  with  foreign 
nations;  and  any  surplus  of  revenue,  thus  derived,  shall, 
after  making  such  improvement,  be  paid  into  the  com- 
mon treasury";  and  there  is  added,  at  the  end  of  the 
paragraph,  "But  when  any  river  divides  or  flows  through 
two  or  more  States,  they  may  enter  into  compacts  with 
each  other  to  improve  the  navigation  thereof." 

(Art.  II.):  In  §  I,  ^  i,  instead  of  the  second  sentence, 


3i 8  The  Slavery  Controversy 

there  is  inserted:  "He  and  the  Vice-President  shall  hold 
their  offices  for  the  term  of  six  years ;  but  the  President 
shall  not  be  re-eligible.  The  President  and  Vice-Presi- 
dent shall  be  elected  as  follows."  Instead  of  ^[  3  of  §  i 
are  inserted,  as  TT  3,  4,  and  5,  the  three  paragraphs  of 
Amendment  XII.  of  the  Constitution.  ^[^[  4-8  thus  be- 
come T^[  6-10,  inserting  in  the  new  ^  7,  at  the  begin- 
ning: "No  person  except  a  natural  born  citizen  of  the 
Confederate  States,  or  a  citizen  thereof  at  the  time  of  the 
adoption  of  this  Constitution,  or  a  citizen  thereof  born 
in  the  United  States  prior  to  the  2oth  December,  1860, 
shall  be  eligible,"  etc.,  and  adding  at  the  end:  "as  they 
may  exist  at  the  time  of  his  election."  Before  ^[  3  of 
§  2  is  inserted  a  new  paragraph,  as  follows: 

"  3.  The  principal  officer  in  each  of  the  executive  depart- 
ments, and  all  persons  connected  with  the  diplomatic  service, 
may  be  removed  from  office  at  the  pleasure  of  the  President. 
All  other  civil  officers  of  the  executive  department  may  be 
removed  at  any  time  by  the  President,  or  other  appointing 
power,  when  their  services  are  unnecessary,  or  for  dishonesty, 
incapacity,  inefficiency,  misconduct,  or  neglect  of  duty  ;  and 
when  so  removed,  the  removal  shall  be  reported  to  the  Senate, 
together  with  the  reasons  therefor." 

T  3  thus  becomes  T  4,  adding  to  it:  "But  no  person  re- 
jected by  the  Senate  shall  be  re-appointed  to  the  same 
office  during  their  ensuing  recess." 

(Art.  III.):  In  §  i,  T  i,  "supreme"  is  changed  to 
"superior."  The  latter  part  of  ^  I  of  §  2  is  changed  to 
read  as  follows :  "between  a  State  and  citizens  of  another 
State,  where  the  State  is  plaintiff;  between  citizens 
claiming  lands  under  grants  of  different  States,  and  be- 
tween a  State  or  the  citizens  thereof,  and  foreign  states, 
citizens,  or  subjects ;  but  no  State  shall  be  sued  by  a  citi- 
zen or  subject  of  any  foreign  state." 

(Art.  IV.) :  In  §  2,  1 1,  there  is  added :  "and  shall  have 


Confederacy  and  State  Sovereignty    3T9 

the  right  of  transit  and  sojourn  in  any  State  of  this  Con- 
federacy, with  their  slaves  and  other  property ;  and  the 
right  of  property  in  said  slaves  shall  not  be  thereby  im- 
paired." In  §  2,  T  2,  there  is  inserted :  "against  the  laws 
of  such  State,"  after  "other  crime."  §  2,  ^[  3,  is  altered 
to  read:  "No  slave  or  other  person  held  to  service  or 
labor  in  any  State  or  Territory  of  the  Confederate  States, 
under  the  laws  thereof,  escaping  or  unlawfully  carried 
into  another";  and  the  words  "to  whom  such  slave  be- 
longs; or"  are  inserted  after  "on  claim  of  the  party." 
I"  §  3.  T  i»  instead  of  the  first  eleven  words  there  is  sub- 
stituted: "Other  States  may  be  admitted  into  this  Con- 
federacy by  a  vote  of  two-thirds  of  the  whole  House  of 
Representatives  and  two-thirds  of  the  Senate,  the  Senate 
voting  by  States."  In  §  3,  ^[  2,  the  last  twenty-three 
words  are  omitted,  and  there  is  substituted :  "concerning 
the  property  of  the  Confederate  States,  including  the 
lands  thereof."  A  new  paragraph  is  added,  as  follows: 

"  3.  The  Confederate  States  may  acquire  new  territory  ;  and 
Congress  shall  have  power  to  legislate  and  provide  govern- 
ments for  the  inhabitants  of  all  territory  belonging  to  the 
Confederate  States,  lying  without  the  limits  of  the  several 
States,  and  may  permit  them,  at  such  times  and  in  such  man- 
ner as  it  may  by  law  provide,  to  form  States  to  be  admitted 
into  the  Confederacy.  In  all  such  territory  the  institution  of 
negro  slavery,  as  it  now  exists  in  the  Confederate  States,  shall 
be  recognized  and  protected  by  Congress  and  by  the  territorial 
government ;  and  the  inhabitants  of  the  several  Confederate 
States  and  Territories  shall  have  the  right  to  take  to  such  terri- 
tory any  slaves  lawfully  held  by  them  in  any  of  the  States  or 
Territories  of  the  Confederate  States." 

§  4  is  altered  to  read:  "to  every  State  that  now  is  or 
hereafter  may  become  a  member  of  this  Confederacy." 
Art.  V.  is  altered  to  read  as  follows : 

"  Upon  the  demand  of  any  three  States,  legally  assembled 


32o  The  Slavery  Controversy 

in  their  several  conventions,  the  Congress  shall  summon  a 
convention  of  all  the  States,  to  take  into  consideration  such 
amendments  to  this  constitution  as  the  said  States  shall  con- 
cur in  suggesting  at  the  time  when  the  said  demand  is  made; 
and  should  any  of  the  proposed  amendments  to'the  constitu- 
tion be  agreed  on  by  the  said  convention — voting  by  States — 
and  the  same  be  ratified  by  the  legislatures  of  two-thirds  of 
the  several  States,  or  by  conventions  in  two-thirds  thereof — as 
the  one  or  the  other  mode  of  ratification  may  be  proposed 
by  the  general  convention  —  they  shall  thenceforward  form 
a  part  of  this  constitution.  But  no  State  shall,  without  its 
consent,  be  deprived  of  its  equal  representation  in  the  Senate." 

(Art.  VI.):  For  §  I,  T  I,  a  new  paragraph  is  substi- 
tuted, as  follows:  "i.  The  government  established  by 
this  constitution  is  the  successor  of  the  provisional  gov- 
ernment of  the  Confederate  States  of  America,  and  all 
the  laws  passed  by  the  latter  shall  continue  in  force  until 
the  same  shall  be  repealed  or  modified ;  and  all  the  officers 
appointed  by  the  same  shall  remain  in  office  until  their 
successors  are  appointed  and  qualified,  or  the  offices 
abolished."  TT  1-3  thus  become  ^[  2-4,  and  Amend- 
ments IX.  and  X.  of  the  Constitution  are  added  as  ^ffl  5 
and  6. 

(Art.  VII.):  In  this  article  "  five  States"  is  substituted 
for  "nine  States,"  and  the  following  is  added: 

"  When  five  States  shall  have  ratified  this  constitution  in  the 
manner  before  specified,  the  Congress  under  the  provisional 
constitution  shall  prescribe  the  time  for  holding  the  election 
of  President  and  Vice-President,  and  for  the  meeting  of  the 
Electoral  College,  and  for  counting  the  votes  and  inaugurat- 
ing the  President.  They  shall  also  prescribe  the  time  for 
holding  the  first  election  of  members  of  Congress  under  this 
constitution,  and  the  time  for  assembling  the  same.  Until  the 
assembling  of  such  Congress,  the  Congress  under  the  provis- 
ional constitution  shall  continue  to  exercise  the  legislative 


Confederacy  and  State  Sovereignty    321 

powers  granted  them;  not  extending  beyond  the  time  limited 
by  the  constitution  of  the  provisional  government." 

This  constitution  was  ratified  in  all  the  States  by  the 
still  existing  State  conventions,  not  by  popular  action. 
An  examination  of  the  changes  which  it  introduced  will 
divide  them  into  two  general  classes,  executive  and  politi- 
cal. Of  the  executive  changes,  intended  to  amend  the 
administration  of  government,  there  are  a  number  fairly 
open  to  discussion,  some  which  have  since  been  proposed 
for  adoption  by  the  United  States,  and  some  which  have 
been  already  adopted  by  several  State  governments. 
The  political  changes  were  evidently  not  merely  declara- 
tive, intended  to  guard  against  false  constructions  of  the 
Constitution  of  1787,  but  were  actively  remedial,  intended 
to  revive  the  State  sovereignty  of  the  Confederation  by 
withdrawing  complete  control  over  commerce  and  internal 
improvements  from  the  central  government,  and,  further, 
to  rest  the  foundations  of  the  new  government  (to  quote 
Vice-President  A.  H.  Stephens),  not  upon  Jefferson's 
"fundamentally  wrong"  "assumption  of  the  equality  of 
races,"  but  upon  "the  great  truth  that  the  negro  is  not 
equal  to  the  white  man ;  that  slavery,  subordination  to 
the  superior  race,  is  his  natural  and  normal  condition." 

The  Confederate  constitution  is,  therefore,  itself  a 
public  confession  that  Southern  Democratic  politicians 
were  consciously  in  error  from  1840  until  1860  in  claim- 
ing the  Constitution  as  the  palladium  of  slavery;  that, 
under  the  Constitution's  fair  construction,  slavery  was  in 
truth  protected  by  the  States,  not  by  the  nation;  and 
that  "We,  the  people,"  of  1787,  must  be  changed  by 
violence,  and  not  by  construction,  into  "We,  the  States," 
of  1861. 

The  internal  legislation  of  the  provisional  congress  was, 
at  first,  mainly  the  adaptation  of  the  civil  service  in  the 
Southern  States  to  the  uses  of  the  new  government. 


VOL.  II. 21 


3 22  The  Slavery  Controversy 

Wherever  possible,  judges,  postmasters,  and  civil  as  well 
as  military  and  naval  officers  who  had  resigned  from  the 
service  of  the  United  States  were  given  an  equal  or 
higher  rank  in  the  Confederate  service.  Postmasters 
were  directed  to  make  their  final  accounting  to  the 
United  States  May  3ist,  thereafter  accounting  to  the 
Confederate  States.  April  29th,  the  provisional  con- 
gress, which  had  adjourned  March  i6th,  reassembled  at 
Montgomery,  having  been  convoked  by  President  Davis 
in  consequence  of  President  Lincoln's  preparations  to 
enforce  Federal  authority  in  the  South.  Davis's  mes- 
sage announced  that  all  the  seceding  States  had  ratified 
the  permanent  constitution;  that  Virginia,  which  had 
not  yet  seceded,  had  entered  into  alliance  with  the  Con- 
federacy, and  that  other  States  were  expected  to  follow 
the  same  plan.  He  concluded  by  declaring  that  "all  we 
ask  is  to  be  let  alone."  May  6th,  an  act  was  passed 
recognizing  the  existence  of  war  with  the  United  States. 
Congress  adjourned  May  22d,  reconvened  at  Richmond, 
Va.,  July  2oth,  and  adjourned  August  22d  until  Novem- 
ber 1 8th.  Its  legislation  had  been  mainly  military  and 
financial.  Virginia,  North  Carolina,  Tennessee,  and  Ar- 
kansas had  passed  ordinances  of  secession,  and  been  ad- 
mitted to  the  Confederacy.1  Although  Missouri  and 
Kentucky  had  not  seceded,  delegates  from  these  States 
were  admitted  in  December,  1861. 

November  6,  1861,  at  an  election  under  the  permanent 
constitution,  Davis  and  Stephens  were  again  chosen  to 
their  respective  offices  by  unanimous  electoral  vote. 
February  18,  1862,  the  provisional  congress  (of  one 
House)  gave  way  to  the  permanent  congress,  and  Davis 
and  Stephens  were  inaugurated  February  22d.  The 
cabinet,  with  the  successive  secretaries  of  each  depart- 
ment, was  as  follows,  including  both  the  provisional  and 
permanent  cabinets :  State  Department — Robert  Toombs, 

1  See  the  States  named,  and  Secession. 


Confederacy  and  State  Sovereignty    323 

Ga.,  Feb.  21,  1861 ;  R.  M.  T.  Hunter,  Va.,  July  30,  1861 ; 
Judah  P.  Benjamin,  La.,  Feb.  7,  1862.  Treasury  De- 
partment— Charles  G.  Memminger,  S.  C.,  Feb.  21,  1861, 
and  March  22,  1862;  James  L.  Trenholm,  S.  C.,  June 
13,  1864.  War  Department — L.  Pope  Walker,  Miss., 
Feb.  21,  1861 ;  Judah  P.  Benjamin,  La.,  Nov.  10,  1861; 
James  A.  Seddon,  Va.,  March  22,  1862;  John  C.  Breck- 
inridge,  Ky.,  Feb.  15,  1865.  Navy  Department— Stephen 
R.  Mallory,  Fla.,.  March  4,  1861,  and  March  22,  1862. 
Attorney  General — Judah  P.  Benjamin,  La.,  Feb.  21, 
1861 ;  Thomas  H.  Watts,  Ala.,  Sept.  10,  1861,  and 
March  22,  1862;  George  Davis,  N.  C.,  Nov.  10,  1863. 
Postmaster  General — Henry  J.  Ellet,  Miss.,  Feb.  21,  1861 ; 
John  H.  Reagan,  Texas,  March  6,  1861,  and  March  22, 
1862.  As  has  already  been  said,  the  provisional  congress 
held  four  sessions,  as  follows:  I,  Feb.  4-March  16,  1861 ; 
2,  April  20,-May  22,  1861 ;  3,  July  2O-Aug.  22,  1861 ;  and 
4,  Nov.  18,  i86i-Feb.  17,  1862.  Under  the  permanent 
constitution  there  were  two  congresses.  The  first  con- 
gress held  four  sessions,  as  follows:  I,  Feb.  i8-April  21, 
1862;  2,  Aug.  i2-Oct.  13,  1862;  3,  Jan.  12-May  8,  1863; 
and  4,  Dec.  7,  i863-Feb.  18,  1864.  The  second  congress 
held  two  sessions,  as  follows:  I,  May  2-June  15,  1864, 
and  2,  from  Nov.  7,  1864,  until  the  hasty  and  final  ad- 
journment, March  18,  1865.  In  the  first  congress  mem- 
bers chosen  by  rump  State  conventions,  or  by  regiments 
in  the  Confederate  service,  sat  for  districts  in  Missouri 
and  Kentucky,  though  these  States  had  never  seceded. 
There  were  thus  thirteen  States  in  all  represented  at  the 
close  of  the  first  congress ;  but,  as  the  area  of  the  Con- 
federacy narrowed  before  the  advance  of  the  Federal 
armies,  the  vacancies  in  the  second  congress  became 
significantly  more  numerous.  At  its  best  estate  the 
Confederate  Senate  numbered  26,  and  the  House  106, 
as  follows :  Alabama,  9 ;  Arkansas,  4 ;  Florida,  2 ;  Geor- 
gia, 10;  Kentucky,  12 ;  Louisiana,  6;  Mississippi,  7; 


324  The  Slavery  Controversy 

Missouri,  7;  North  Carolina,  10;  South  Carolina,  6; 
Tennessee,  n;  Texas,  6;  Virginia,  16.  In  both  con- 
gresses Thomas  S.  Bocock,  of  Virginia,  was  Speaker  of 
the  House. 

The  only  noteworthy  feature  of  the  political  history  of 
the  Confederate  States  was  the  insignificance  of  the  legis- 
lative. The  original  revolutionary,  or  provisional,  gov- 
ernment was  not  the  result  of  popular  initiative,  but  was 
directly  due  to  the  energy  of  a  senatorial  clique,  actively 
assisted  by  a  few  leading  men  in  each  State.  The  demor- 
alizing influences  of  a  great  civil  war,  which  even  the  sol- 
idest  and  most  firmly  based  form  of  popular  government 
can  only  imperfectly  resist,  were  almost  instantly  fatal 
to  the  inchoate  political  character  of  the  Confederacy. 
The  strongest  and  most  self-assertive  spirit  of  the  sena- 
torial clique,  having  been  chosen  President,  at  once 
began  to  quarrel  with  his  associates,  and  to  drive  them 
from  his  counsels ;  there  was  no  popular  strength  in  the 
provisional  congress  to  resist  him ;  and  even  before  the 
inauguration  of  the  permanent  government,  the  Confed- 
eracy had  become  a  military  despotism  of  the  executive. 

The  sittings  of  congress  were  almost  continuously 
secret,  and  its  acts,  generally  prepared  in  advance  by  the 
executive,  the  cabinet  having  seats  in  congress,  were 
made  conformable  to  his  known  wishes,  or  were  inter- 
preted by  him  to  suit  his  own  pleasure.  As  the  war 
became  more  desperate,  and  the  most  capable  leaders 
went  into  the  army,  the  morale  of  congress  further  de- 
cayed, and  this  process  was  increased  by  the  presence  of 
a  cohort  of  members  from  States  which  had  never  seceded, 
or  had  since  been  conquered,  who  represented  no  con- 
stituencies and  were  to  a  great  degree  dependent  on  the 
executive  for  their  political  future.  The  business  of 
congress  thus  grew  to  be  mainly  the  registering  of  laws 
prepared  by  the  executive,  the  passing  of  resolutions  to 
continue  the  war  to  the  end,  the  debate  of  resolutions  to 


Confederacy  and  State  Sovereignty   325 

retaliate  or  to  fight  under  the  black  flag,  and  the  prepara- 
tion of  addresses  to  their  constituents,  whose  earnestness 
of  tone  may  be  estimated  from  the  following  sentence 
in  one  of  them:  "Failure  will  compel  us  to  drink  the 
cup  of  humiliation  even  to  the  bitter  dregs  of  having 
the  history  of  our  struggle  written  by  New  England 
historians." 

Outside  of  the  ordinary  powers  conferred  by  the  legis- 
lative, the  war  powers  openly  or  practically  exercised  by 
the  executive  were  more  sweeping  and  general  than  those 
assumed  by  President  Lincoln.  The  Confederate  treas- 
ury was  held  subject  to  executive  drafts  to  any  extent, 
and  without  audit  or  account ;  the  State  governments 
were  expected  to  act,  and  State  judges  to  decide,  in 
conformity  with  the  President's  wishes  in  small  or  great 
matters,  under  penalty  of  presidential  displeasure  and 
punishment ;  not  only  individuals,  but  whole  communities 
(as  in  East  Tennessee),  were  held  liable  to  summary  mili- 
tary execution  by  the  mere  warrant  of  the  executive; 
and  his  dictatory  meddlesomeness  in  the  management  of 
the  army  was  so  notorious  and  so  uniformly  unfortunate 
that  Foote,  of  Tennessee,  did  not  hesitate  to  declare,  in 
the  House,  in  December,  1863,  that  "the  President  never 
visited  the  army  without  doing  it  injury — never  yet,  that 
it  has  not  been  followed  by  disaster." 

The  interferences  of  the  committees  on  the  conduct  of 
the  war  in  the  Federal  Congress  often  seemed  unwarrant- 
able or  unfortunate;  but  they  justly  represented  the 
feeling  of  a  people  bent  not  only  upon  fighting  but  on 
keeping  to  themselves  the  control  of  the  fighting,  a  feel- 
ing of  which  there  is  not  a  trace  in  the  brief  legislative 
history  of  the  Confederate  States.  The  rout  of  Bull 
Run,  and  the  expected  advance  of  the  triumphant  enemy 
upon  Washington,  only  extorted  from  the  Federal  Con- 
gress the  resolve  to  vote  every  dollar  and  every  man 
which  the  President  might  find  necessary  in  suppressing 


326  The  Slavery  Controversy 

the  Rebellion ;  a  similar  state  of  affairs  in  Richmond,  early 
in  1865,  drew  from  the  Confederate  congress  an  angry 
vote  that  Davis's  incompetency  was  the  cause  of  the  dis- 
asters, and  a  substitution  of  Lee  as  commander-in-chief 
with  unlimited  powers. 

This  final  and  spiteful  exposure  of  its  own  nullity  was 
the  only  known  instance  of  entirely  independent  action 
or  initiative  in  important  matters  by  the  permanent  con- 
gress during  its  three  years  of  existence.  The  govern- 
ment was  merely  a  military  despotism,  very  thinly  clothed 
in  the  forms  of  law,  in  which  parties  and  party  politics 
could  have  no  existence.1 

STATE  SOVEREIGNTY  is  the  theory  of  the  relation  of  the 
States  to  the  Union  on  which  was  based  the  right  of 
secession.  It  held  that  all  the  rights  and  powers  of  sover- 
eignty were  vested  in  the  thirteen  States,  or  common- 
wealths, which  originally  formed  the  American  Union ; 
that  the  peoples  of  these  commonwealths  had  authorized 
their  State  governments  to  form  the  Confederation  in 
1777-81  and  the  Constitution  in  1787-9;  that  the  peoples 
of  the  individual  commonwealths  thus  formed  a  voluntary 
union,  retaining  to  themselves  the  whole  essence  of  sover- 
eignty, but  yielding  to  the  new  Federal  Government 
certain  of  the  insignia  of  government,  previously  held 
by  the  State  governments ;  that  the  people  of  any  State, 
by  withdrawing  from  the  Federal  Government  its  grant 
of  powers,  ipso  facto  dissolved  the  only  bond  which  united 
them  in  a  continuously  voluntary  union  with  the  other 
States;  and  that  there  is,  and  can  be,  no  "sovereignty" 
in  the  people  of  all  the  States,  considered  as  a  nation,  in 
internal  affairs,  and  no  insignia  of  sovereignty  in  foreign 
affairs,  except  what  is  granted  to  the  Federal  Government 
by  the  real  sovereignties,  the  peoples  of  the  individual 
commonwealths,  or  States. 

1  See  Slavery,  Nullification,  State  Sovereignty,  Allegiance,  Secession, 
Drafts,  Rebellion,  United  States. 


Confederacy  and  State  Sovereignty    327 

The  above  is  the  doctrine  of  State  sovereignty  pure 
and  simple,  as  it  includes  the  right  of  secession.  There 
is  a  much  more  popular  and  far  milder  doctrine,  of  which 
Madison  was  the  strongest  supporter:  it  holds  that  the 
States  were  sovereign  until  the  ratification  of  the  Consti- 
tution; and  that  they  then  ceased  to  be  entirely  sov- 
ereign, a  government  partly  national  and  partly  federal 
taking  their  place.  A  variety  of  the  first  theory  was  also 
upheld,  particularly  in  1861-5:  it  held  that  the  States 
were  still  truly  sovereign,  but  that  their  international 
responsibility  and  comity  forbade  them  to  secede  even 
from  a  voluntary  union  on  trivial  grounds,  and  author- 
ized the  other  States  to  war  upon  them  and  compel  their 
return. 

In  considering  the  question  it  is  as  well  to  begin  by 
examining  the  word  sovereignty  itself,  though  the  exam- 
ination must  be  brief.  Mr.  John  Austin  defines  it  thus: 

"  If  a  determinate  human  superior,  not  in  the  habit  of  obed- 
ience to  a  like  superior,  receive  habitual  obedience  from  the 
bulk  of  a  given  society,  that  determinate  superior  is  sovereign 
in  that  society,  and  the  society  (including  the  superior)  is  a 
society  political  and  independent.  To  that  determinate  su- 
perior the  other  members  of  the  society  are  subject.  .  .  . 
The  mutual  relation  which  subsists  between  that  superior  and 
them  may  be  styled  the  relation  of  sovereign  and  subject,  or 
the  relation  of  sovereignty  and  subjection." 

This  carefully  guarded  definition  evidently  implies  that 
sovereignty  resides  in  some  small  class,  and  it  will  settle 
the  question  of  the  sovereignty  of  the  Dukes  of  Burgundy 
in  the  Middle  Ages,  or  of  the  Princes  of  Servia  in  modern 
times.  But  its  fundamental  idea  must  be  modified  in  the 
United  States,  where  every  governmental  agency  is  sup- 
posed to  be  "in  the  habit  of  obedience"  to  the  will  of  the 
people,  expressed  in  written  constitutions. 

The  question  for  us  must  be,  whether  the  people  of  the 


328  The  Slavery  Controversy 

State,  the  commonwealth,  or  the  people  of  the  nation 
has  been  habitually  superior  when  it  has  seen  fit  to  de- 
clare its  will.  This  will  show  us  whether  the  ultimate 
sovereignty,  the  absolute  independence  of  action  in 
domestic  and  foreign  affairs,  the  uncontrolled  power  of 
decision  in  the  last  resort,  is  in  the  people  of  a  State  or 
in  the  national  people. 

No  theory  of  the  nature  of  the  American  Union  can  be 
suggested  against  which  arguments  from  authority,  from 
the  declarations  and  opinions  of  leading  men,  legislative 
bodies  and  conventions,  cannot  be  levied  in  array.  The 
feeling  of  the  American  people  has  always  been  so 
strongly  individualistic,  their  conventions  and  legislat- 
ures have  been  so  much  inclined  to  put  confidence  in 
their  own  assertions  without  regard  to  opposing  facts, 
and  their  public  men  have  been  so  influenced  in  feeling 
and  language  by  their  environment,  that  it  is  not  dif- 
ficult to  bring  arguments  from  authority  in  support  of 
every  variety  of  theory. 

Our  theory,  relying  on  the  facts  of  our  history,  and 
practically  disregarding  authority,  is  founded  in  a  be- 
lief opposed  to  all  the  theories  above  enumerated: 
that  the  Union  is  not  "voluntary,"  in  the  sense  implied 
in  State  sovereignty ;  that  it  has  always  been  compelled 
by  force  of  circumstances,  common  interests,  and  every- 
thing that  goes  to  develop  a  national  will  and  make  up  a 
nation ;  that  the  nation  has  existed,  by  its  own  will  main- 
tained by  arms,  since  the  first  shot  was  fired  at  Lexing- 
ton ;  that  it  has  since  continually  asserted  its  existence 
with  a  steadily  growing  certainty  of  success ;  but  that  the 
expression  and  assertion  of  its  existence  is  limited,  ac- 
cording to  its  own  will  and  the  political  instincts  of  the 
people,  by  the  controlling  necessity  for  preserving  State 
lines,  State  government,  and  "State  rights,"  properly  so 
called.1  The  presentation  of  this  theory  will  therefore 

1  See  Congress,  Continental  ;  Declaration  of  Independence. 


Confederacy  and  State  Sovereignty    329 

be  confined  to  I,  the  leading  arguments  for  State  sov- 
ereignty, as  advanced  by  its  supporters;  II,  the  historical 
arguments  against  it;  and  III,  "State  rights." 

I.  The  word  "people"  is  the  x  of  American  political 
algebra.  All  parties  agree  in  the  assertion  that  sovereignty 
is  inherent  in  the  people,  not  in  the  government ;  and  in 
so  far  the  unanimity  of  belief  is  almost  startling,  con- 
sidering the  diversity  of  results  to  which  it  has  led.  But 
the  unanimity  disappears  as  soon  as  we  undertake  to  de- 
fine "the  people."  Is  it  the  people  of  all  the  States,  of 
the  nation,  that  is  sovereign?  Is  it  the  people  of  each 
individual  State  that  is  sovereign?  Jefferson  Davis  and 
his  associates  in  1861  held  the  latter  view,  and  each,  when 
the  sovereign  people  of  his  State  declared  for  secession, 
obeyed  the  behest  of  the  only  "people  "  known  to  him, 
even  to  the  waging  of  war  on  the  United  States.  The 
dominant  party  of  the  North  and  West  held  the  former 
view,  and  justified  the  people  of  the  nation,  through  its 
constituted  agents,  in  suppressing  rebellion  by  war.  The 
Democratic  party  of  the  North  and  West  generally  sup- 
ported the  war  measures  of  the  Government,  but  did  so 
on  the  ground  of  the  third  doctrine  above  mentioned, 
that  the  Government  was  the  agent  of  the  non-seceding 
States  in  offsetting  by  war  the  unfriendly  act  of  secession. 
If  the  doctrine  of  State  sovereignty  is  correct,  if  each 
individual  State  is  the  only  nation  which  its  citizens  can 
know,  the  Southern  States  in  1 860-61  undoubtedly  exer- 
cised a  constitutional  and  inalienable  right  in  seceding,  if 
they  believed  that  the  welfare  of  their  citizens  and  their 
own  preservation  would  be  imperilled  by  remaining  in  the 
Union ;  and  the  suppression  of  the  Rebellion  was  a  revo- 
lutionary transformation  of  a  voluntary  into  an  involun- 
tary Union.  And  the  argument  of  Southern  writers  in 
favor  of  State  sovereignty  is,  in  general,  as  follows  : 

i.  They  direct  attention  to  the  slow  and  steady  growth 
of  the  States  along  the  Atlantic  coast,  the  nucleus  of  each 


33°  The  Slavery  Controversy 

being  widely  separated  from  the  others,  and  none  of 
them  ever  mingling  with  its  neighbors  or  losing  its  own 
identity;  to  the  fact  that  each  had  its  distinct  govern- 
ment, the  King  being  the  common  executive;  and  they 
conclude  that  when  the  connection  between  the  Colonies 
and  the  King  was  "severed  by  rebellious  swords,  each 
Colony  became  a  living  soul,  and  each  necessarily  pos- 
sessed sovereign  political  will  over  its  own  territory  and 
people."  In  support  of  this  assertion  their  appeals  are 
mainly  to  authority ;  and  if  this  form  of  argument  could 
be  accepted  as  conclusive,  the  doctrine  of  State  sover- 
eignty would  be  very  strong.  The  word  "people,"  as 
used  at  the  time,  was  almost  invariably  applied  to  the 
people  of  a  State;  and  the  people  of  all  the  States  are 
loosely  referred  to  as  "the  continent,"  "the  generality," 
"America  in  general."  When  independence  was  finally 
declared,  the  instrument  was  carefully  entitled  "The 
unanimous  declaration  of  the  thirteen  united  [sic]  States 
of  America,"  showing  that  "thirteen  independent  wills 
became  unanimous  on  the  great  occasion  ";  and  in  de- 
claring the  independence  of  "the  States,"  these  bodies 
are  always  referred  to  in  the  plural:  "that  as  Free  and 
Independent  States  they  have  full  Power  to  levy  War, 
conclude  Peace,  contract  Alliances,  Establish  Commerce, 
and  to  do  all  other  Acts  and  Things  which  Independent 
States  may  of  right  do."  The  idea  may  be  indicated  by 
the  full  title  of  Dr.  Ramsay's  History  of  the  Revolution  of 
South  Carolina  from  a  British  Province  to  an  Independent 
State.  And  the  language  of  the  constitutions  adopted 
by  the  several  States  during  the  revolutionary  period  is 
even  stronger  in  the  same  direction.  "The  people  of 
this  State,  being  by  the  providence  of  God  free  and  inde- 
pendent, have  the  sole  and  exclusive  right  of  governing 
themselves  as  a  free,  sovereign,  and  independent  State; 
.  .  .  That  this  republic  is  and  shall  forever  be  and 
remain  a  free,  sovereign,  and  independent  State."  (Con- 


Confederacy  and  State  Sovereignty    331 

necticut  act  of  1776,  establishing  the  charter  as  a  consti- 
tution, Preamble  and  Article  i.)  "The  people  of  this 
commonwealth  have  the  sole  and  exclusive  right  of  gov- 
erning themselves  as  a  free,  sovereign,  and  independent 
State."  (Massachusetts  constitution  of  1780,  still  in 
force,  Art.  4.)  "This  convention,  therefore,  in  the  name 
and  by  the  authority  of  the  good  people  of  this  State, 
doth  ordain,  determine,  and  declare  that  no  authority 
shall,  on  any  pretence  whatever,  be  exercised  over  the 
people  or  members  of  this  State  but  such  as  shall  be  de- 
rived from  and  granted  by  them."  (New  York  consti- 
tution of  1777,  Art.  i.)  "That  the  style  of  this  country 
[sic]  be  hereafter  the  State  of  South  Carolina."  (South 
Carolina  constitution  of  1778,  Art.  i.) 

When  we  add  to  such  expressions  as  these  the  emphatic 
caveat  of  the  second  of  the  Articles  of  Confederation, 
"each  State  retains  its  sovereignty,  freedom,  and  inde- 
pendence," the  whole  makes  up  a  formidable  mass  of 
contemporary  testimony  in  favor  of  the  "sovereignty" 
of  the  individual  States ;  and  it  is  re-enforced  by  the  un- 
conscious and  ingenuous  testimony  given  by  the  almost 
invariable  language  of  men  of  the  time  in  official  and 
unofficial  positions.  And,  finally,  in  the  treaty  of  peace 
which  closed  the  war,  the  high  contracting  parties  joined 
in  declaring,  not  that  the  United  States  as  a  nation  was 
independent,  but  that  the  several  States,  naming  them  in 
order,  were  "free,  sovereign,  and  independent  States." 

But,  after  all,  what  is  all  this  argument  from  authority 
worth  more  than  the  impotent  protests  of  a  drowning 
man  in  the  midst  of  a  resistless  current?  His  declarations 
that  he  will  not  drown  can  hardly  save  him  without  the 
added  exertion  of  swimming.  If  "sovereignty  "  could 
be  maintained  by  resolutions  alone,  the  argument  from 
authority  would  be  of  weight ;  but  neither  is  true.  Reams 
of  resolutions  would  be  of  little  avail  in  maintaining  the 
"sovereignty  "  of  Ireland  or  Poland,  unless  the  resolvers 


33 2  The  Slavery  Controversy 

were  ready  to  back  their  resolutions  by  physical  force; 
and  no  such  readiness  was  ever  shown  by  the  individual 
States.  Massachusetts  came  nearest  to  it  in  the  sudden 
levy  of  troops  and  siege  of  Boston  which  followed  the 
fight  at  Lexington ;  but  even  Massachusetts,  while  fight- 
ing the  enemy  with  one  hand,  was  with  the  other  beckon- 
ing to  the  nation  for  help,  and  her  delegates,  as  soon  as 
the  Continental  Congress  met  in  the  following  month, 
successfully  urged  the  adoption  of  her  troops  as  a  "con- 
tinental army."  In  resolutions  the  States  were  prolific: 
when  it  came  to  war,  the  highest  and  most  dread  attribute 
of  "sovereignty,"  all  instinctively  shrank  back,  and  pitted 
the  true  nation  against  a  king,  sovereign  against  sovereign. 
The  mass  of  evidence  above  summarized  goes  just  far 
enough  to  prove  that  the  individual  States  were  sover- 
eignties in  posse  ;  and  had  any  one  of  them  ever  ventured 
on  the  next  essential  step,  and  maintained  its  separate 
sovereignty  by  physical  force,  no  sane  man  could  have 
denied  that  it  was  at  last  a  sovereignty  in  esse.  But  this 
last  step  has  always  been  wanting,  and,  while  that  is  the 
case,  all  is  wanting.  That  States,  thus  cowering  like 
frightened  chickens  under  their  mother's  wing,  should 
have  gone  on  calmly  ignoring  in  words  their  mother's 
existence,  and  asserting  by  resolution  the  sovereignty 
which  they  dared  not  maintain  by  force,  only  shows  the 
inability  of  even  the  wisest  men  to  see  clearly  all  the 
phases  of  contemporary  history.  That  able  men  should 
still  argue  that  a  sovereignty  in  posse  can  be  transformed 
into  a  sovereignty  in  esse  by  such  a  cheap  and  easy 
weapon  as  a  resolution,  only  proves  that  prejudice  is  still 
frequently  of  stronger  weight  than  obvious  fact.  That 
the  nation  should  have  quietly  tolerated  such  open  de- 
nials of  its  very  existence,  only  proves  the  national  indis- 
position to  apply  unnecessary  force.  An  imperator  or  a 
czar  must  suppress  the  least  impeachment  of  his  sover- 
eignty :  the  American  Republic  will  still  calmly  allow  even 


Confederacy  and  State  Sovereignty    333 

an  open  denial  of  its  existence — always  provided  that  the 
denial  is  confined  to  theory. 

But  it  must  not  be  supposed  that  the  argument  from 
authority  itself  is  so  overwhelmingly  in  favor  of  State 
sovereignty  as  the  summary  above  would  imply.  We 
may  pass  by  the  unofficial  exhibitions  of  national  spirit 
in  Revolutionary  times,  and  still  have  a  reserve  force  of 
authority  to  show  the  universal  consciousness  that  the 
controlling,  though  always  self-controlled,  power  was  in 
the  national  people.  Congress,  in  its  declaration  of  July 
6,  1775,  says:  "We  exhibit  to  mankind  the  remarkable 
example  of  a  people  [not  of  thirteen  peoples]  attacked  by 
unprovoked  enemies."  The  same  body  formulates  its 
proclamation  of  December  6,  1775,  thus:  "We,  there- 
fore, in  the  name  of  the  people  of  these  United  Colo- 
nies ";  and  thus  begins  its  Declaration  of  July  4,  1776: 
"When,  in  the  course  of  human  events,  it  becomes 
necessary  for  one  people  to  dissolve  the  political  bands 
which  have  connected  them  with  another,  and  to  assume 
among  the  powers  of  the  earth  the  separate  and  equal 
station  to  which  the  laws  of  nature  and  of  nature's  God 
entitle  them."  This  last  step,  this  assumption  of  a  sepa- 
rate and  equal  station  among  the  powers  of  the  earth,  is 
the  only  means  by  which  "sovereignty  "  can  properly  be 
asserted;  and  it  never  has  been  so  asserted  by  a  single 
State.  The  real  national  revolutionary  nature  of  the 
Declaration,  and  the  subordinate  part  played  by  the 
States  in  it,  are  well  stated  in  the  address  of  Congress  to 
the  people,  December  10,  1776:  "It  is  well  known  to  you 
that,  at  the  universal  desire  of  the  people,  and  with  the 
hearty  approbation  of  every  province,  the  Congress  de- 
clared the  United  States  free  and  independent."  If  we 
are  to  trust  to  authority,  we  may  cite  the  sweeping  asser- 
tion of  Charles  Cotesworth  Pinckney,  January  18,  1788: 
"The  separate  independence  and  individual  sovereignty 
of  the  several  States  were  never  thought  of  by  the 


334  The  Slavery  Controversy 

enlightened  band  of  patriots  who  framed  the  Declaration  of 
Independence;  the  several  States  are  not  even  mentioned' 
by  name  in  any  part  of  it."  And  no  man  in  the  South 
Carolina  Legislature  at  that  time  said  him  nay  when  he 
denounced  the  claim  "that  each  State  is  separately  and 
individually  independent,  as  a  species  of  political  heresy." 

Again,  in  its  commission  to  its  ambassadors  to  France,' 
October  23,  1776,  Congress  remarks:  "A  trade  upon 
equal  terms,  between  the  subjects  of  his  most  Christian 
Majesty  and  the  people  of  these  States  will  be  beneficial 
to  both  nations' ;  and  the  ultimate  treaty  of  February  6, 
1778,  refers  regularly  to  "the  two  parties"  or  "the  two 
nations."  The  treaties  with  the  Netherlands,  Sweden, 
and  Prussia,  in  1783-5,  use  the  same  phrases.  Nor  did 
Congress  hesitate  to  bring  the  national  power  into  plain 
view,  when  necessary.  December  4,  1775,  it  resolved 
that  "in  the  present  situation  of  affairs,  it  will  be  very 
dangerous  to  the  liberties  and  welfare  of  America,  if  any 
Colony  should  separately  petition  the  King  or  either 
House  of  Parliament."  December  29,  1775,  it  resolved 
that  "the  Colonies  of  Virginia,  Maryland,  and  North 
Carolina  be  permitted  to  export  produce  to  any  part  of 
the  world,  except  Great  Britain,"  etc.  Finally,  May  15, 
1776,  the  Congress  recommended  the  various  assemblies 
and  conventions  of  the  Colonies  "to  adopt  such  govern- 
ment as  shall  in  the  opinion  of  the  representatives  of 
the  people  best  conduce  to  the  happiness  and  safety  of 
their  constituents  in  particular  and  America  in  general"; 
and  the  national  power  which  thus  brooded  over  the 
State  governments  themselves  is  indicated  in  an  address 
of  Congress  to  the  people  of  the  United  States,  May  8, 
1778:  "Your  interests  will  be  fostered  and  nourished  by 
governments  that  derive  their  power  from  your  grant. 

Even  the  State  constitutions  which  declare  the  sover- 
eignty of  the  State  show  the  underlying  consciousness 
of  the  delegates  that  a  national  power  was  in  existence, 


Confederacy  and  State  Sovereignty    335 

though  it  was  more  prone  to  show  itself  by  acts  than  by 
words.  The  constitutions  of  Delaware,  Georgia,  New 
Hampshire,  New  Jersey,  New  York,  North  Carolina,  and 
Pennsylvania  all  refer  expressly  to  the  previous  action 
of  Congress,  and  particularly  to  its  resolution  of  May  15, 
1776,  as  the  justification  of  their  action;  and  the  four 
State  constitutions  (of  Massachusetts,  Maryland,  Vir- 
ginia, and  South  Carolina)  which  do  not  expressly  refer 
to  it,  do  so  tacitly  by  their  long  delay  until  Congress 
took  the  initiative.  The  preamble  of  the  South  Carolina 
constitution  of  1778  even  assigns,  as  a  reason  for  a  new 
constitution,  that  "the  United  Colonies  of  America  have 
since  been  constituted  independent  States  ...  by 
the  declaration  of  the  honorable  the  Continental  Congress, 
dated  the  4th  day  of  July,  1776."  But  the  first  consti- 
tution of  South  Carolina,  March  26,  1776,  strikes  the 
deadliest  of  all  possible  blows  at  the  theory  of  State 
sovereignty,  whose  essential  dogma  is  that  the  United 
States  exists  in  a  State  only  by  the  continuing  will  of  the 
State.  On  the  contrary,  article  twenty-eight  of  this  con- 
stitution declares  that  "the  resolutions  of  the  Continen- 
tal Congress,  now  of  force  in  this  Colony,  shall  so  continue 
until  altered  or  revoked  by  them  [Congress]."  The  reso- 
lutions of  the  National  Congress  in  force  in  South  Caro- 
lina, prior  to  any  declaration  of  the  "sovereign"  will  of 
South  Carolina!  Certainly  Calhoun  had  no  hand  in 
framing  this  constitution. 

Having  stated  the  arguments,  pro  and  contra,  we  can 
only  conclude  that  the  arguments  from  authority  are 
quite  evenly  balanced,  but  that  the  argument  from  fact  is 
overwhelmingly  against ' '  State  sovereignty. ' '  The  States 
declared  themselves  sovereign  over  and  over  again ;  but 
calling  themselves  sovereign  did  not  make  them  so.  It 
is  necessary  that  a  State  should  be  sovereign,  not  that  it 
should  call  itself  so,  while  still  sheltering  itself  under  a 
real  national  authority.  The  nation  was  made  by  events 


336  The  Slavery  Controversy 

and  by  the  acts  of  the  national  people,  not  by  empty 
words  or  by  the  will  of  sovereign  States;  but  the  sover- 
eign will  of  the  nation  has  always  been  that  there  should 
be  States,  that  the  people  should  act  politically  through 
them,  and  that  their  rights  and  privileges  should  be 
respected. 

2.  If  the  argument  from  fact,  that  the  separate  States 
were  never  more  than  sovereignties  in  posse,  and  that  they 
never  ventured  to  become  sovereignties  in  esse,  is  sound, 
it,  of  course,  disposes  of  State  sovereignty  not  only  in  the 
birth  of  the  nation  and  in  the  formation  of  the  Confedera- 
tion, but  in  the  adoption  of  the  Constitution  also.  If  a 
sovereignty  was  created  by  general  and  national  obedi- 
ence to  the  resolutions  of  a  revolutionary  national  as- 
sembly, unlimited  by  any  organic  law;  and  if  that 
sovereignty  was  maintained  by  a  successful  national  war, 
there  is  no  argument  to  the  contrary  in  the  fact  that  the 
new  sovereignty  allowed  its  agents,  the  State  govern- 
ments, to  shape  the  Articles  of  Confederation,  and  to 
appoint  delegates  to  the  convention  of  1787.  The  na- 
tional sovereignty  thus  created  might  have  disintegrated 
and  died ;  New  York  or  Virginia  might  have  broken  away 
and  sustained  herself  as  a  sovereignty  in  esse  as  well  as  in 
posse  ;  but  there  was  in  fact  no  such  result. 

The  national  feeling  held  the  nation  together,  and 
forced  the  unwilling  State  governments  to  stand  sponsors 
to  a  new  national  assembly.  Such  a  body  was  the  con- 
vention of  1787.  It  could  not  have  been  an  assemblage 
of  ambassadors  from  sovereign  States,  for,  as  is  noted 
hereafter,  no  State  constitution  ever  purported  to  give  its 
legislature  power  to  send  such  ambassadors  or  make  such 
a  treaty,  and  no  governor  ever  ventured  to  assume  such  a 
power.  And  the  convention,  when  it  met,  proved  its 
national  character  by  disregarding  altogether  the  Articles 
of  Confederation,  which  were  never  to  have  been  even 
amended,  except  by  unanimous  vote  of  all  the  legisla- 


Confederacy  and  State  Sovereignty    337 

tures;  and  by  giving  the  ratification  of  the  new  form  of 
government  to  State  conventions,  not  even  allowing  the 
legislatures  a  voice  in  the  matter. 

Nevertheless,  State  sovereignty  adduces  a  great  mass 
of  argument  from  authority  in  all  the  transactions  which 
led  to  the  adoption  of  the  Constitution,  and  in  the  Con- 
stitution itself.  The  convention  itself  struck  out  the 
word  "national"  from  the  first  resolution  proposed  to  it, 
"that  a  national  government  ought  to  be  established." 
Its  debates  are  marked  by  frequent  use  of  expressions 
relating  to  the  sovereignty  of  the  States.  "That  the 
States  are  at  present  equally  sovereign  and  independent 
has  been  asserted  from  every  quarter  of  this  House," 
said  one  delegate.  The  expression,  "We,  the  people  of 
the  United  States,"  in  the  preamble  to  the  Constitution, 
and  the  omission  of  the  names  of  the  States,  are  usually 
cited  as  decisive  proofs  against  State  sovereignty.  Un- 
doubtedly the  people  of  the  nation  were  making  the 
Constitution,  but  it  is  very  doubtful  whether  many  of  the 
delegates  were  aware  of  the  fact :  most  of  them  probably 
still  applied  the  word  to  the  people  of  their  own  individual 
State,  and  felt,  as  the  Federalist  (No.  39)  expressed  it, 
that  "each  State  in  ratifying  the  Constitution  is  con- 
sidered as  a  sovereign  body,  independent  of  all  others, 
and  only  to  be  bound  by  its  own  voluntary  act." 

The  omission  of  the  names  of  the  States  seemed  deci- 
sive to  so  respectable  an  authority  as  Mr.  Motley,  but 
unluckily  the  omission  cuts  the  other  way.  In  the  first 
draft  of  the  Constitution,  as  reported  by  the  committee, 
August  6,  1787,  the  preamble  reads,  "We,  the  people  of 
the  States  of  New  Hampshire,  Massachusetts,"  etc. 
(naming  them  in  order),  and  the  names  were  left  out  in 
the  final  draft  from  the  apprehension  that  one  or  more 
of  the  States  named  might,  by  virtue  of  its  supposed 
"sovereignty,"  reject  the  Constitution,  drop  out  of  the 
Union,  and  compel  an  after  alteration  of  the  preamble. 


VOL.  II. 22. 


338  The  Slavery  Controversy 

To  the  same  effect  is  the  seventh  article  of  the  Con- 
stitution, as  finally  adopted:  "The  ratification  of  the 
conventions  of  nine  States  shall  be  sufficient  for  the 
establishment  of  this  Constitution  between  the  States  so 
ratifying  the  same. ' ' 

What,  then,  was  to  be  the  status  of  the  States  which 
should  refuse  to  ratify?  Were  they  still  in  the  Union, 
perhaps  as  Territories?  Or  were  they  to  secede  from  the 
Union?  Or  had  the  other  States  already  seceded,  and 
left  them  to  keep  warm  the  ashes  of  the  old  Confedera- 
tion, if  they  could?  Was  the  Constitution  itself  a  suc- 
cessful secession  from  the  Confederation?  or  did  it  only 
provide  for  necessary  secession  in  this  seventh  article? 
Such  questions  as  these  have  always  had  an  obvious  fas- 
cination for  the  advocates  of  State  sovereignty,  while 
their  opponents  have  usually  avoided  both  Scylla  and 
Charybdis  by  going  overland  and  ignoring  them  alto- 
gether. But,  in  any  candid  discussion  of  the  subject, 
they  must  be  met  and  answered ;  and,  in  order  to  answer 
them,  the  effort  has  been  made  to  state  them  fairly  and 
strongly. 

Such  questions,  with  their  tacit  implication  that  "sov- 
ereignty" is  a  mere  affair  of  words,  that  any  body  of 
men,  in  order  to  be  sovereign,  has  only  to  call  itself,  or 
be  called,  sovereign,  afford  silent  but  weighty  testimony 
to  the  peculiar  natural  advantages  which  the  American 
people  enjoy,  and  have  always  enjoyed.  If  the  proxim- 
ity of  more  powerful  neighbors  had  ever  compelled  the 
American  people  to  sacrifice  one  or  more  States  or  parts 
of  States  as  the  price  of  a  treaty  of  peace,  the  fallacy  of 
State  sovereignty  would  have  been  exposed.  But  this 
has  never  been  necessary,  except  in  the  partial  example 
of  Maine  in  1842  ;  and  annexation,  which  is  the  comple- 
ment of  such  territorial  sacrifice,  is  always  ignored  by  the 
advocates  of  the  doctrine. 

Free  from  dangerous  neighbors,  the  American  people 


Confederacy  and  State  Sovereignty    339 

did  not,  until  1861,  learn  the  truth  which  bitter  experi- 
ence had  made  familiar  to  less  favored  quarters  of  the 
globe,  that  sovereignty  is  always  potentially  an  affair  of 
"blood  and  iron"  ;  and  that  it  needs  not  only  men  who 
know,  or  think  they  know,  their  rights,  but  men  who, 
"knowing,  dare  maintain."  Sovereignty  is  indivisible, 
as  any  controlling  will  is  indivisible.  As  between  the 
nation  and  the  States,  the  only  question  must  be,  Which 
was  the  sovereignty?  And  it  can  only  be  answered  by 
asking,  Which  dared  to  go  alone,  to  carve  out  its  own 
path,  and  achieve  its  own  destiny?  The  question  answers 
itself.  Two  States,  Rhode  Island  and  North  Carolina, 
refused  to  ratify,  and  the  Constitution  went  into  force 
without  them.  There  could  have  been  no  more  excellent 
opportunity  than  this  to  convert  a  sovereignty  in  posse 
into  a  sovereignty  in  esse ;  but  this  first  and  last  test  for 
sovereignty  compelled  each  of  these  States  to  answer, 
"It  is  not  in  me."  Within  two  years  both  were  con- 
fessedly in  their  natural  places  as  part  of  the  nation :  both 
had  ratified  the  Constitution,  nominally  as  their  volun- 
tary act  and  deed,  but  actually,  like  other  States,  under 
stress  of  circumstances.  We  cannot  know  how  far 
Rhode  Island  was  influenced  by  unofficial  propositions 
to  carve  up  her  territory  between  Massachusetts  and 
Connecticut,  or  how  far  North  Carolina  was  influenced 
by  official  propositions  in  Congress  to  suppress  or  re- 
strain her  commerce  with  the  neighboring  States.1  We 
can  only  see  the  patent  fact  that  these  two  States  had 
and  shrank  from  the  opportunity  to  attempt  to  become 
sovereign  in  very  truth. 

But  the  constitutional  phrase,  "between  the  States  so 
ratifying  the  same,"  brings  up  the  further  question, 
Where  were  Rhode  Island  and  North  Carolina  between 
March  4,  1789,  and  their  respective  ratifications  in  1789- 
90?  Were  they  in  or  out  of  the  Union?  Unless  the 

1  See  Secession. 


340  The  Slavery  Controversy 

nation  existed,  and  these  States  were  still  a  part  of  it, 
we  are  completely  at  sea.  The  nation  which  had  by  suc- 
cessful war  extorted  from  Great  Britain  a  recognition  of 
its  boundaries  would  not  have  been  slow  upon  occasion 
to  compel  Rhode  Island  and  North  Carolina,  and  Ver- 
mont as  well,  to  respect  those  boundaries,  and  to  recog- 
nize themselves  as  included  within  them.  But  no  such 
occasion  arose,  and  no  argument  can  fairly  be  drawn  from 
a  forbearance  of  the  nation  to  enforce  its  sovereign  will. 
Failure  to  overcome  an  open  defiance  would  have  been 
a  different  matter;  but  a  father's  authority  is  not  to  be 
fairly  impeached  from  his  forbearance  in  allowing  a  re- 
calcitrant son  an  hour  for  consideration.  In  point  of  fact, 
Rhode  Island  and  North  Carolina  finally  ratified  the  very 
Constitution  which  they  had  at  first  rejected,  without  a 
single  amendment  to  commend  the  chalice  to  their  lips. 
There  was  no  escape  for  them :  they  had  to  ratify ;  but 
the  forbearance  of  the  nation  gave  them  an  opportunity 
to  do  so  "voluntarily." 

That  the  new  scheme  of  government  should  have  been 
defeated  by  the  will  of  two  States,  or  that  these  two 
should  remove  themselves  without  successful  war  from 
the  boundaries  fixed  in  1783,  would  have  been  equally 
impossible;  but  the  nation  had  been  guilty  of  an  over- 
sight in  allowing  State  legislatures  to  form  the  Arti- 
cles of  Confederation,  with  their  absurd  provision  for  a 
unanimous  ratification  of  amendments,  and  the  nation 
scrupulously  atoned  for  its  oversight  by  forbearing  to 
press  even  the  weakest  of  its  States.  There  is  of  course 
a  still  stronger  argument  drawn  from  the  nature  of  the 
Constitution,  but  that  will  best  be  considered  under  the 
second  part  of  this  chapter. 

It  would  be  unfair  to  deny  that  the  various  conven- 
tions which  ratified  the  Constitution  in  1787-90  con- 
sidered themselves  as  acting  for  "sovereign  States." 
The  debates  of  the  Virginia  convention  show  that  the 


Confederacy  and  State  Sovereignty    34 l 

word  "people"  meant  the  people  of  the  several  and  in- 
dividual States,  and  not  of  the  nation,  in  this  declaration, 
which  was  a  part  of  the  ratification:  "That  the  powers 
granted  under  this  Constitution,  being  derived  from  the 
people  of  the  United  States,  may  be  resumed  by  them, 
whensover  the  same  shall  be  perverted  to  their  injury  or 
oppression";  and  these  words,  in  their  literal  meaning, 
have  the  essence  of  the  doctrines  both  of  State  sover- 
eignty and  secession.  But  these  words,  again,  are  mere 
"authority,"  void  as  against  facts. 

Whose  was  the  uncontrollable  will,  the  sovereignty, 
that  extorted  ratification  from  an  unwilling  majority  in 
Virginia,  New  York,  New  Hampshire,  and  Massachusetts, 
and,  later,  in  Rhode  Island  and  North  Carolina?  Was  it 
the  will  of  any  State?  or  was  it  the  will  of  the  nation, 
acting,  according  to  its  own  preference,  through  State 
organizations?  The  question  answers  itself,  provided  the 
questioner  will  confine  himself  to  the  facts  of  our  history, 
and  turn  a  deaf  ear  to  the  conflicting  arguments  from 
authority,  the  opinions,  sometimes  correct  and  some- 
times incorrect,  of  the  actors  in  the  history.  But  the 
question  is  often  triumphantly  asked,  What  would  have 
happened  if  a  part  of  the  States  had  refused  finally  to 
ratify?  Either  the  recusants  would  have  left  the  consti- 
tutional number  of  ratifying  States  (9),  or  less  than  that 
number.  In  the  latter  case  the  condition  placed  upon 
ratification  by  the  national  will  would  not  have  been  ful- 
filled ;  and  the  whole  scheme  of  the  Constitution  would 
have  failed.  In  the  former  case,  the  pressure  upon  the 
recusant  States  would  have  been  gradually  increased  until 
the  alternative  of  ratification  or  force  would  have  been 
distinctly  presented.  In  either  event,  that  of  general 
confusion  or  that  of  the  forcible  maintenance  of  the 
national  will,  the  sword,  the  ultima  ratio  of  sovereignty, 
would  have  made  its  appearance ;  and,  whatever  the  re- 
sult of  the  struggle  might  have  been,  "State  sovereignty" 


342  The  Slavery  Controversy 

would  certainly  have  received  before  1800  the  quietus 
which  it  finally  received  in  1865.  One  sovereignty,  or 
two,  or  three,  might  have  emerged  from  the  chaos,  but 
State  sovereignty,  and  even  State  rights,  would  hardly 
have  survived. 

In  this  point  of  view  the  ratification  debates  of  1787-9 
show  the  usual  contradiction  between  authority  and  fact, 
between  the  constant  assertion  of  State  sovereignty  and 
the  ever-present  fear  that  force  might  dispel  the  illusions 
of  the  assertion.  A  contemporary  tradition  is,  that 
Washington,  while  signing  the  Constitution,  thus  struck 
the  keynote  of  this  feeling:  "Should  the  States  reject 
this  excellent  Constitution,  the  probability  is  that  an  op- 
portunity will  never  again  offer  to  cancel  [substitute] 
another  in  peace:  the  next  will  be  drawn  in  blood." 
"I  fear  a  civil  war,"  said  Gerry.  "Apprehending  the 
danger  of  a  general  confusion  and  an  ultimate  decision 
by  the  sword,  I  shall  give  the  plan  my  support,"  said 
Charles  Pinckney.  "Is  it  possible  to  deliberate  between 
anarchy  and  convulsion  on  the  one  side,  and  the  chance 
of  good  to  be  expected  from  the  plan  on  the  other?" 
asked  Hamilton.  "Suppose,"  said  Thompson,  in  the 
Massachusetts  convention,  "nine  States  adopt  this  Con- 
stitution:  who  shall  touch  the  other  four?  Some  cry 
out,  Force  them.  I  say,  Draw  them."  In  the  Virginia 
convention  Patrick  Henry  unconsciously  drew  a  pregnant 
parallel  between  the  forbearance  of  the  nation  in  forming 
the  Confederation  and  in  forming  the  Constitution: 
"During  the  war  America  was  magnanimous.  What 
was  the  language  of  the  little  State  of  Maryland?  'I  will 
have  time  to  consider.  I  will  hold  out  three  years.  Let 
what  may  come,  I  will  have  time  to  reflect. '  Magnanim- 
ity appeared  everywhere.  What  was  the  upshot? 
America  triumphed."  Where  was  the  sovereignty,  then, 
the  uncontrollable,  though  self-controlled  and  "mag- 
nanimous," power  in  the  cases  of  Maryland  under  the 


Confederacy  and  State  Sovereignty    343 

Confederation,  and  of  Rhode  Island  and  North  Carolina 
under  the  Constitution?  Finally,  December  14,  1787,  in 
a  public  letter,  Washington  used  the  following  language, 
which  sums  up  the  case  against  State  "sovereignty"  in 
framing  the  Constitution:  "Should  one  State,  however 
important  it  may  conceive  itself  to  be,  or  a  minority  of 
the  States,  suppose  that  they  can  dictate  a  constitution 
to  the  majority,  unless  they  have  the  power  of  ad- 
ministering the  ultima  ratio,  they  will  find  themselves 
deceived." 

As  a  summary,  we  may  say  that  the  ratification  of  the 
Constitution  by  the  conventions  of  six  of  the  States,  New 
Hampshire,  Massachusetts,  Rhode  Island,  New  York, 
Virginia,  and  North  Carolina,  was  not  at  all  voluntary ; 
that  it  was  extorted  by  the  evident  preponderance  of  the 
national  will,  including  minorities  in  their  own  States,  as 
well  as  majorities  in  other  States,  and  by  a  fear  of  array- 
ing a.pseudo  sovereignty  against  a  real  sovereignty;  that 
the  whole  process  was  a  national  act ;  and  that  the 
strongest  arguments  from  authority  cannot  avail  against 
the  facts  of  the  case.  Nevertheless,  there  is  one  expres- 
sion of  opinion  which  should  be  cited  here,  not  as  an 
argument  from  authority,  but  as  giving  exactly  and 
tersely  the  writer's  belief.  It  is  that  of  James  Wilson, 
in  the  Pennsylvania  convention  of  December  4,  1787. 
"My  position  is,  that  in  this  country  the  supreme,  abso- 
lute, and  uncontrollable  power  resides  in  the  people  at 
large ;  that  they  have  vested  certain  proportions  of  this 
power  in  the  State  governments ;  but  that  the  fee-simple 
continues,  resides,  and  remains  with  the  body  of  the  peo- 
ple." He  who  asserts  the  contrary,  who  holds  that  the 
will  of  a  State  is,  or  has  ever  been,  uncontrollable,  must 
prove  it  by  adducing  facts,  not  opinions,  whether  con- 
temporary or  subsequent  to  the  Revolution. 

3.  After  1789  State  sovereignty  entered  upon  the 
seventy-five  years'  struggle  with  the  national  idea  which 


344  The  Slavery  Controversy 

ended  in  1865. '  Throughout  this  struggle  almost  every 
State  in  the  Union  in  turn  declared  its  own  "sovereignty," 
and  denounced  as  almost  treasonable  similar  declarations 
in  other  cases  by  other  States.  Where  these  declarations 
stopped,  and  were  intended  to  stop,  at  naked  assertion, 
they  come  properly  under  our  third  head  of  "State 
rights."  In  this  form  they  have  always  been  common, 
and  probably  will  again  be  common,  though  they  have 
much  decreased  in  frequency  since  1865.  So  late  as 
March  19,  1859,  on  the  occasion  of  a  Supreme  Court 
decision  against  the  Wisconsin  "personal  liberty  law,"1 
the  State  Legislature  passed  a  series  of  resolutions, 
the  last  of  which  spoke  the  following  strong  language : 
"that  the  several  States  which  formed  that  instru- 
ment [the  Constitution],  being  sovereign  and  inde- 
pendent, have  the  unquestionable  right  to  judge  of  its 
infractions ;  and  that  a  positive  defiance  by  those  sover- 
eignties of  all  unauthorized  acts  done  under  color  of  that 
instrument  is  the  rightful  remedy."  References  to 
sovereign  States  and  the  sovereignty  of  the  States  have 
since  been  by  no  means  unusual  in  legislative  resolutions 
and  judicial  decisions.  A  good  example  is  in  the  mes- 
sage of  Governor  Robinson,  of  New  York,  June  14,  1878, 
vetoing  a  bill  to  enable  creditors  of  other  States  to  sue 
through  New  York  State  officers:  "It  requires  the  State 
to  lay  down  its  dignity,  its  honor,  and  its  integrity  as  a 
sovereign  State  of  the  Union,  and  to  become  a  collecting 
agent  for  speculators  in  State  bonds."  In  none  of  them 
has  there  been  any  apparent  notion  of  a  possible  main- 
tenance of  the  so-called  sovereignty  by  force  in  case  of 
opposition  to  it. 

We  are  interested  only  in  the  cases  where  this  final  test 
of  sovereignty  has  been  brought  in  question.     It  is  fairly 

1  See  Kentucky  Resolutions  ;  Convention,  Hartford  ;  Nullification  ;  Se- 
cession ;  Reconstruction. 
*  See  that  title. 


Confederacy  and  State  Sovereignty    345 

doubtful  whether  the  New  England  opposition  to  the 
embargo  and  the  War  of  1812  falls  in  the  former  or  in 
the  latter  class.  The  probability  is  that  it  really  meant 
State  sovereignty  to  a  few  of  the  leaders,  but  only  State 
rights  to  the  mass  of  the  leaders  and  followers.  The 
action  of  Pennsylvania  in  the  Olmstead  case,  in  1809, 
and  of  Georgia  in  the  Cherokee  case,  in  1830-32,  inclined 
toward  the  forcible  maintenance  of  the  State's  will.  In 
the  former  case  the  national  authority  was  enforced,  and 
in  the  latter  it  was  yielded.  South  Carolina's  nullifica- 
tion of  the  tariff  act  in  1832  fulfilled  every  requisite  of 
the  theory  of  State  sovereignty  by  employing  a  formal 
State  convention  to  declare  the  uncontrollable  will  of  the 
State. 

This  was  therefore  the  first  fair  and  open  attempt  in 
our  history  to  maintain  the  doctrine  to  its  logical  conse- 
quences, and  it  was  a  failure.  The  inability  of  the  State 
to  maintain  its  ground  was  so  evident  that  an  unofficial 
assemblage  suspended  the  sovereign  will  of  the  State  to 
a  point  beyond  the  designated  time.  From  this  time 
State  sovereignty  became  inextricably  blended  with 
slavery,  until  the  growing  union  of  both  ended  in  seces- 
sion in  1 860-61.'  It  is  very  true,  as  most  Southern  writers 
assert,  that  the  fundamental  issue  on  which  the  seceding 
States  waged  war  in  1861-5  was  the  maintenance  of  "the 
right  of  self-government,"  that  is,  of  State  sovereignty; 
and  that  in  comparison  with  this,  slavery  was  of  little  im- 
portance. It  is  true  that,  when  a  State  had  once  pro- 
nounced its  will  to  secede,  both  the  supporters  and  the 
opposers  of  secession  felt  bound  to  maintain  the  will  of 
the  State,  even  to  the  extent  of  war  against  the  United 
States.  But  it  is  equally  true  that  no  such  issue  would 
ever  have  been  presented  but  for  slavery  and  its  progres- 
sive influence  in  arraying  the  will  of  the  State  against  the 
will  of  the  nation.  When  the  issue  was  at  last  presented, 

1  See  Slavery,  Secession. 


346  The  Slavery  Controversy 

it  could  no  longer  be  avoided.  There  was  no  room  for 
forbearance,  or,  as  Patrick  Henry  termed  it,  "magnanim- 
ity"; sovereignty  was  brought  to  the  touchstone,  and 
State  sovereignty  was  found  wanting. 

In  the  subsequent  process  of  reconstruction,1  there 
was  very  much  that  was  at  variance  not  only  with 
State  sovereignty,  but  with  State  rights  as  well.  The 
power  over  the  militia,  the  elective  franchise,  the  State 
courts,  and  the  police  regulation  of  cities  and  towns, 
which  the  universal  national  will  decrees  to  be  in  the 
States,  was  for  a  time  withheld  from  the  lately  seceding 
States.  If  this  was  intended  in  any  way  as  a  certificate 
of  burial  for  the  defunct  theory  of  State  sovereignty,  it 
served  the  further  purpose  of  bringing  into  plainer  view 
the  healthy  doctrine  of  State  rights;  for  the  punishment 
was  so  abhorrent  to  the  national  instincts  that  it  was  very 
rapidly  abandoned.  Out  of  all  the  struggles  of  the  past 
has  come  the  unanimous  will  of  the  nation,  equally  op- 
posed to  State  sovereignty  and  to  centralization,  that  it 
shall  be  an  indissoluble  Union  of  indestructible  States. 

II.  Under  the  first  head  the  effort  has  been  made  to 
show  the  baselessness  of  State  sovereignty  from  the  single 
historical  fact  that  the  will  of  the  nation  has  always  been 
the  controlling  power,  though  it  has  always  been  forbear- 
ing in  non-essentials.  It  is  necessary  further  to  adduce 
some  other  more  isolated  facts,  all  showing  that  the 
States  were  never  sovereigns. 

i.  It  is  essential  that  a  sovereignty  should  have  com- 
plete power  of  independent  action  in  external  affairs  as 
well  as  in  internal  affairs.  Foreign  nations,  in  their  inter- 
course with  a  state,  look,  not  to  assertions  of  sovereignty, 
but  to  the  fact,  and  regulate  their  recognition  and  diplo- 
matic relations  accordingly.  What  are  we  to  think  of  a 
"sovereignty"  that  never  declared  or  waged  a  war,  never 
concluded  a  peace,  never  sent  or  received  an  ambassador, 
1  See  that  title. 


Confederacy  and  State  Sovereignty    347 

never  flew  a  recognized  flag,  and  never  formed  a  treaty 
or  an  alliance?  And  yet  this  is  the  history  of  nearly  if 
not  quite  all  the  States.  The  few  exceptions,  the  New 
England  Union,1  the  Indian  wars  and  treaties  of  New 
England  and  the  South,  the  pine  tree  flag  and  coin- 
age, were  sub  rosa  appropriations  of  the  insignia  of 
sovereignty,  unrecognized  by  any  others  than  the  appro- 
priators,  and  most  of  them  occurred  in  colonial  times, 
when  sovereignty,  other  than  the  King's,  was  unthought 
of.  Even  when  the  Colonies  became  States,  the  usual 
American  political  sense  showed  itself  through  all  the 
declarations  of  State  sovereignty :  none  of  their  State  con- 
stitutions purported  to  give  the  State  governments  any 
of  the  powers  above  enumerated,  nor  was  this  withhold- 
ing of  power  the  consequence  of  any  agreement  in  the 
Articles  of  Confederation,  for  all  the  State  constitutions 
were  framed  before,  most  of  them  five  years  before,  the 
Articles  of  Confederation  went  into  force.  It  was  the 
consequence  of  the  instinctive  national  sense  that  these 
belonged  to  the  real  sovereignty,  the  nation.  There  is  a 
single  remarkable  exception,  the  twenty-sixth  article  of 
the  South  Carolina  constitution  of  1776:  "That  the  presi- 
dent [governor]  and  commander-in-chief  shall  have  no 
power  to  make  war  or  peace,  or  enter  into  any  final 
treaty,  without  the  consent  of  the  general  assembly  and 
legislative  council."  But  even  this  (unaltered  until  1790) 
must  be  taken  as  only  an  argument  from  authority,  since 
the  implied  treaty  power  of  the  State  was  never  main- 
tained in  fact. 

2.  The  States  have  nowhere  shown  their  lack  of  the 
essentials  of  sovereignty  more  conspicuously  than  in  their 
self-confessed  inability  to  stand  alone.  At  the  very  out- 
set of  the  struggle  between  the  nation  and  the  King,  in 
1775,  the  boldest  of  the  States,  Massachusetts,  was  the 
loudest  in  calling  upon  the  Continental  Congress  for  help 
1  See  that  title. 


348  The  Slavery  Controversy 

to  maintain  her  integrity.  The  first  State  to  form  a  con- 
stitution, New  Hampshire,  did  so  only  after  seeking  the 
patronage  of  Congress,  and  all  the  other  States,  except 
South  Carolina,  waited,  before  taking  the  same  step,  for 
the  general  recommendation  of  Congress,  May  15,  1776, 
referred  to  above.  In  the  Articles  of  Confederation  each 
State  legislature  undertook  to  covenant  with  all  the  others 
for  protection.  This  was  found  to  be  too  weak  a  safe- 
guard, and  the  nakedness  of  State  sovereignty  was  fully 
exposed  in  the  adoption  of  the  Constitution:  "The 
United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government,  and  shall  pro- 
tect each  of  them  against  invasion  and  .  .  .  against 
domestic  violence."  Even  in  1861  the  seceding  States, 
which  so  loudly  declared  their  sovereignty,  were  at  the 
same  time  contradicting  the  assertion  by  their  instinctive 
efforts  to  form  a  new  nation  for  the  protection  of  State 
sovereignty.  A  sovereignty  incapable  of  self-mainte- 
nance, and  always  under  the  protection  of  a  higher 
power,  is  a  contradiction  in  terms. 

3.  A  still  stronger  objection  is  the  nature  of  the  gov- 
ernments, whether  they  be  called  federal  or  national, 
which  have  been  formed  in,  for,  and  by  the  Union.  The 
first,  or  revolutionary,  government  of  the  Continental 
Congress  was  absolutely  opposed  to  State  sovereignty. 
The  armies  which  were  mustered,  the  navies  which  were 
created,  the  war  which  was  waged,  the  flag  which  was 
displayed,  the  treaties  which  were  made,  and  the  debt 
which  was  contracted,  were  all  exclusively  national,  and 
depended  for  their  credit  on  the  will  of  the  whole  people. 
Congress  even  showed  its  national  nature  by  declaring 
independence  without  the  assent  of  New  York,  and  by 
practically  making  Washington  dictator  in  1777.  Even 
the  Articles  of  Confederation,  though  they  declared  the 
sovereignty  of  each  State,  contradicted  the  assertion  by 
leaving  the  insignia  of  sovereignty  to  the  National  Gov- 


Confederacy  and  State  Sovereignty    349 

ernment.  When  we  come  to  the  Constitution,  the  objec- 
tion becomes  absolutely  insuperable.  The  prohibitions 
upon  the  States  in  Section  10  of  Article  I.  are  all  pro- 
hibitions of  the  exercise  of  sovereign  powers ;  the  States, 
then,  were  not  in  fact  regarded  as  sovereignties,  either 
by  themselves  or  by  others.  The  same  argument  cannot 
be  applied  to  the  preceding  section,  prohibiting  the  exer- 
cise of  certain  powers  by  the  United  States;  for  these 
are  all  matters  of  routine,  not  sovereign  powers.  Under 
the  Constitution  the  States  were  not  to  have  even  the  ap- 
pearance of  sovereignties :  the  powers  to  declare  war,  to 
make  peace,  to  conclude  treaties,  to  suppress  insurrec- 
tions, and  to  punish  treason,  were  now  placed  where  they 
belonged,  in  the  National  Government.  If  States  formed 
the  Constitution,  they  stultified  their  own  assertions  of 
sovereignty.  The  conclusion  must  be,  not  that  States, 
State  governments,  or  the  Federal  Government  is  sover- 
eign, possessed  of  uncontrollable  power,  but  that  the 
people  of  the  nation,  divided  by  its  own  will  into  States, 
is  sovereign. 

The  idea  that  the  sovereignty  of  the  States  was  only 
suspended  by  the  formation  of  the  Constitution,  ready  to 
be  revived  at  any  moment  by  the  will  of  the  State,  though 
it  was  the  general  Southern  doctrine  after  about  1803,'  is 
altogether  too  fine  spun  for  practical  use  or  recognition. 
The  idea  of  a  comatose  sovereignty,  of  a  sovereignty 
which  sleeps  like  Rip  Van  Winkle,  but  wakes  at  the  exer- 
cise of  its  own  suspended  will,  of  an  uncontrollable  will 
which  still  exists,  though  it  has  resigned  its  essence  to 
another,  of  an  abdicated  sovereign  peaceably  reviving  its 
own  sovereignty,  is  certainly  an  extraordinary  political 
dogma ;  and  its  evident  fallacy  is  enough  to  disprove  the 
notion  that  the  States  were  ever  sovereign. 

Above  all,  the  provision  for  amendment  by  three 
fourths,  not  by  all,  of  the  States,  is  a  flat  negative  to 

1  See  Secession. 


35°  The  Slavery  Controversy 

State  sovereignty.  There  is,  with  the  obsolete  exception 
of  the  retention  of  the  slave  trade  until  1808,  and  with 
the  always  controlling  retention  of  State  lines,  no  limit 
upon  the  power  of  amendment.  Can  we  imagine  real 
sovereignties  not  only  "suspending"  the  exercise  of  their 
own  wills  on  points  certain,  but  agreeing  to  accept  as 
their  own  the  unlimited  and  indefinite  future  will  of  three 
fourths  of  their  associates?  And  yet  the  only  alternative 
for  State  sovereignty  is  to  imagine  the  States  as  making 
the  agreement  without  the  intention  of  keeping  it.  This 
one  provision  for  amendment  is  sufficient  to  outweigh  all 
the  arguments  from  authority  that  could  be  adduced. 

4.  It  is  usually  assumed  that  State  sovereignty  is  essen- 
tial to  a  federal  government,  and  is  only  denied  because  of 
the  desire  to  introduce  the  idea  of  a  national  or  centralized 
government.  In  fact,  the  government  is  both  national 
and  federal :  not,  as  the  Federalist  asserts,  partly  national 
and  partly  federal,  by  the  will  of  the  States ;  but  together 
national  and  federal,  by  the  will  of  the  whole  people. 
Powerful  enough  to  have  established  the  most  centralized 
government,  if  it  had  been  foolish  enough  to  desire  it, 
the  national  will  has  always,  of  its  own  motion,  limited 
itself  to  such  a  government  as  the  States  should  agree 
upon,  a  federal  government.  When  the  nation's  first  in- 
struments, the  State  legislatures,  proved  unfit,  the  nation 
was  strong  enough  to  wipe  out  their  work  and  substitute 
a  better;  but  it  still  pledged  itself  to  maintain  the  States 
intact,  and  to  make  no  change  in  the  Constitution  on 
which  three  fourths  of  the  States  could  not  agree. 

This  universal  American  predilection  to  a  federal  form 
of  government  has  made  it  possible  to  argue  in  favor  of 
the  sovereignty  of  the  original  thirteen  States,  but  the 
case  is  altogether  different  when  we  come  to  the  States 
which  have  been  subsequently  admitted  under  the  Con- 
stitution. So  difficult  is  it  to  ascribe  their  existence  to 
their  own  uncontrollable  will,  or  to  anything  else  thac 


Confederacy  and  State  Sovereignty    351 

the  uncontrollable  will  of  the  nation,  that  the  advocates 
of  State  sovereignty  here  find  (and  evade)  their  Scylla 
and  Charybdis.  Take  the  State  of  Missouri  as  an  ex- 
ample. Its  territory  was  sold  by  France  to  a  sovereignty, 
the  United  States,  not  to  any  or  all  of  the  States.  It 
was  bought  by  the  nation  as  a  sovereignty,  not  by  any 
permission  given  by  the  States  in  a  written  constitution. 
Its  original  acquisition,  its  erection  into  a  Territory,  its 
government  as  a  Territory,  were  alike  the  results  of  the 
national  will.  And  when  its  population  had  grown  suffi- 
ciently to  justify  hope  of  stability,  the  national  authority 
regulated  the  formation  of  a  State  government,  estab- 
lished its  boundaries,  and  finally,  in  its  own  time  and  on 
its  own  terms,  admitted  the  new  State  to  the  Union. 
Will  any  man  be  bold  enough  to  specify  where  and  when 
the  sovereignty,  the  uncontrollable  will,  of  Missouri  came 
into  this  long  process  as  a  factor?  To  whom,  then,  do 
the  people  of  Missouri  owe  what  would  still  often  be 
called  their  "sovereignty,"  the  absolute  power  over  their 
own  affairs,  which  they  have  enjoyed  since  1820,  but  did 
not  enjoy  before  1820?  Evidently,  to  the  national  will. 
There  is  not  a  State,  old  or  new,  in  this  Union,  whose 
will  has  been  considered  in  the  establishment  of  its  own 
boundaries.  The  boundaries  of  the  original  thirteen 
States  and  of  Vermont  were  fixed  by  the  royal  power 
and  its  agents;  the  boundaries  of  new  States,  and  the 
rearrangement  of  the  boundaries  of  the  old  States,  have 
been  fixed  under  the  supervision  of  the  new  national 
sovereignty ;  and  neither  of  these  classes  of  pseudo  sover- 
eignties has  ever  had  the  power  to  add  one  cubit  to  its 
area  of  its  own  uncontrollable  will.  Indeed,  one  of  them 
(Iowa)  was  refused  admission  until  she  would  accept  the 
boundaries  which  the  national  will  had  fixed  for  her. 

The  only  fair  arguments  to  the  contrary  are  Rhode 
Island    and    Texas.1      But   these   were   only   apparent. 
1  See  those  titles. 


35 2  The  Slavery  Controversy 

The  long  resistance  of  the  former  to  the  encroachments 
of  her  neighbors  was  passive,  not  active;  and  the 
boundaries  of  the  latter,  which  her  own  power  had 
been  unable  to  establish  as  she  claimed,  were  finally 
fixed  by  the  United  States.  Texas,  indeed,  is  a  good 
deal  of  an  anomaly  in  her  entrance  to  our  system.  An 
undoubted  sovereignty  previously,  she  was  rather  united 
to  the  Union  than  admitted  to  it.  Some  of  the  Whigs, 
who  were  opposed  to  the  admission,  even  claimed  at  the 
time  that  it  was  a  fair  question  whether  the  United  States 
had  annexed  Texas,  or  Texas  had  annexed  the  United 
States;  that  the  junction  of  the  two  republics  had  prop- 
erly abolished  the  constitutions  of  both,  and  vacated  the 
offices  of  their  respective  presidents;  and  that  a  new 
constitution  and  a  new  president  were  necessary  for  the 
new  nation.  But  the  overwhelming  superiority  of  one 
of  the  two  parties  was  taken  as  a  sufficient  offset  for  all 
legal  informalities,  and  the  "annexation"  was  consum- 
mated. Barring  this  anomalous  case,  the  origin  of  State 
sovereignty  in  new  States  is  a  field  of  inquiry  which  the 
advocates  of  the  theory  of  State  sovereignty  cannot  be 
induced  to  enter.  The  ablest  and  latest  of  them,  in  his 
Republic  of  Republics,  cited  below,  has  a  chapter  of  eight 
pages  on  "Sovereignty  in  the  New  States,"  in  which  the 
whole  question  is  evaded  carefully  and  successfully.  Its 
only  attempt  at  argument  is  in  the  closing  sentences  of 
the  chapter:  "Can  you  think,  dear  reader,  of  any  politi- 
cal difference  between  Ohio  and  Connecticut,  Virginia 
and  Missouri,  New  Jersey  and  Texas,  Georgia  and  Cali- 
fornia, as  to  status,  capacity,  or  rights?  "  And  the  answer 
must  be :  There  is  no  difference ;  each  and  all  owe  their 
status,  capacity,  and  rights  to  the  power  which  won  them, 
by  force  or  purchase,  from  Great  Britain,  France,  Spain, 
or  Mexico,  and  which  has  since  maintained  them,  the 
nation. 

In  fact,  State  sovereignty  is  the  deadliest  of  all  enemies 


Confederacy  and  State  Sovereignty    353 

to  a  federal  government.  In  a  government  without  the 
federal  principle,  the  entrance  of  the  error  is  impossible, 
or  extremely  difficult.  As  soon  as  the  federal  principle 
enters,  its  parasite  enters  with  it,  and  usually  succeeds  in 
destroying  it.  A  permanent  federal  union,  based  upon 
the  uncontrollable  will  of  the  States  which  composed  it, 
would  be  as  impossible  as  permanent  connection  between 
man  and  woman  without  lawful  marriage.  The  sovereign 
power  of  the  nation,  by  the  certainty  which  it  gives  to 
the  bond,  places  in  the  category  of  the  impossible  count- 
less grievances  which,  without  a  national  power,  would 
soon  be  magnified  by  State  jealousy  and  State  dema- 
gogues into  good  reason  for  dissolution  of  the  bond. 
He,  then,  who  denies  State  sovereignty,  but  upholds 
State  rights,  does  so  not  in  defence  of  the  national  power, 
which  is  perfectly  able  to  defend  itself,  but  in  defence  of 
the  most  beautiful  and  yet  delicate  of  all  schemes  of 
government,  the  federal  system. 

III.  State  Rights. — From  1800  until  1865  the  phrase 
"State  rights"  looked  directly  or  indirectly  to  but  one  of 
the  supposed  rights  of  a  State,  the  right  of  secession. 
The  political  revolution  of  1800  was  caused  very  largely 
by  the  revolt  of  the  mass  of  the  people  against  the  Fed- 
eralist idea  that  the  Federal  Government  was  sovereign, 
a  very  different  thing  from  the  assertion  that  the  nation 
is  sovereign.  The  new  party  that  then  assumed  control 
of  the  Federal  Government  did  so  on  the  theory  that  the 
Federal  Government  was  the  servant  of  the  States,  and 
that  the  Union  was  wholly  voluntary  on  the  part  of  the 
States.  This  theory  was  summed  up  in  the  name  "State- 
Rights  Democrat."  In  the  North  and  West  the  theory 
had  disappeared  in  reality  long  before  1860,  and  men  in 
those  sections  who  called  themselves  "State-Rights 
Democrats"  were  hard  pressed  to  reconcile  their  party 
name  and  their  support  of  the  war  against  the  Rebellion. 
In  the  South  the  name  and  theory  were  kept  in  complete 


VOL.    II. — 2J. 


354  The  Slavery  Controversy 

sympathy  by  the  multifarious  influences  of  slavery  until 
State  sovereignty  and  slavery  went  down  in  a  common 
overthrow  in  1865.  "State  rights"  may  now  take  its 
proper  signification,  that  which  belonged  to  it  in  reality 
even  while  "State  sovereignty"  was  given  as  its  formal 
name. 

In  reading  the  debates  of  the  period  from  1775  until 
1789,  no  one  can  help  noticing  the  peculiar  way  in  which 
the  word  "sovereignty"  is  used.  The  same  men  who 
recognize  at  every  step  in  fact  the  existence  of  a  national 
sovereignty,  continue  to  refer  to  the  States  as  "sover- 
eignties." The  same  Wilson,  whose  exact  and  satisfac- 
tory statement  of  the  ultimate  national  sovereignty  has 
been  used  above,  speaks  thus  in  another  place:  "The 
business  of  the  federal  convention  .  .  .  compre- 
hended the  views  and  establishments  of  thirteen  indepen- 
dent sovereignties."  And  such  apparent  contradictions 
are  not  the  exception,  but  the  rule. 

""The  American  statesman's  dictionary,"  says  von  Hoist, 
'"  was  written  in  double  columns,  and  the  chief  terms  of  his 
vocabulary  were  not  infrequently  inserted  twice:  in  the  right- 
hand  column,  in  the  sense  which  accorded  with  actual  facts, 
and  was  in  keeping  with  the  tendency  toward  particularism  ;  in 
the  left,  in  their  logical  sense,  the  sense  which  the  logic  of 
facts  has  gradually  and  through  many  a  bitter  struggle  brought 
out  into  bold  relief,  and  which  it  will  finally  stamp  as  their 
exclusive  meaning." 

If  they  endeavored  to  "outdo  the  mystery  of  the  Trinity 
by  making  thirteen  one,  while  leaving  the  one  thirteen," 
it  was  because  they  were  conscious  that  the  thirteen  were 
thirteen  by  the  will,  protection,  and  support  of  the  one. 
It  is  by  the  citation  of  one  member  of  each  of  these  ver- 
bal contradictions  that  the  advocates  of  State  sovereignty 
have  built  up  their  argument  from  authority,  making  the 


Confederacy  and  State  Sovereignty    355 

"fathers  of  the  republic"  the  fathers  of  their  theory, 
while  ignoring  the  practical  application  by  which  the 
fathers  aforesaid  explained  their  apparent  contradictions. 
The  contradiction  will  disappear  if  we  take  in  set  terms 
what  the  fathers  took  in  practice,  that  the  States  were 
not  sovereign  of  their  uncontrollable  will,  but  that  they 
possessed  absolute  power  in  their  own  sphere  by  the  will 
of  the  nation.  "State  sovereignty"  then  takes  its  proper 
form  of  "State  rights."  The  nation  may  diminish  or 
enlarge  the  sphere  of  the  States :  it  has  repeatedly  done 
both  by  amendments;  but,  whatever  the  sphere  of  the 
States  may  be,  they  are  supreme  within  it. 

It  may  be  said  that  this  reduces  the  States  to  the  rank 
of  counties,  but  the  objection  will  not  hold.  The  will  of 
a  State,  to  which  the  nation  has  abandoned  the  control 
of  cities,  towns,  and  counties,  is  easily  expressed  and 
exercised :  but  the  will  of  the  nation  can  only  be  ex- 
pressed and  exercised  with  such  enormous  difficulty  that 
the  States  are  practically  safe  from  it,  unless  an  unusually 
great  emergency  calls  it  forth.  What  present  hope  is 
there  for  any  suggested  amendment  to  the  Constitution? 
It  may  further  be  said  that  such  a  theory  allows  the  pos- 
sible establishment  of  a  monarchy  in  the  United  States. 
Be  it  so :  pray,  who  is  to  prevent  it  if  the  national  will 
should  incline  to  a  step  so  foolish?  He  who  assumes  to 
prevent  it  must  do  so  by  force.  Who  could  have  pre- 
vented it  in  1775  or  in  1787-9,  if  the  nation  had  willed  it? 
The  report  was  common  in  1787  that  a  part  of  the  con- 
vention's plan  was  to  call  an  English  prince  of  the  blood 
to  the  throne  of  the  United  States.  Had  the  report 
been  correct,  and  the  step  been  ratified,  the  only  differ- 
ence in  the  result  would  have  been  that  Rhode  Island 
and  North  Carolina  would  have  felt  from  a  selfish  royal 
personality  a  pressure  very  different  from  the  magnani- 
mous forbearance  which  a  republican  government  could 
afford  to  exercise.  But  the  sovereignty  would  have  been 


356  The  Slavery  Controversy 

alike  in  both  cases,  and  its  exponent  the  same  in  kind, 
differing  only  in  degree. 

And  how  in  reality  does  this  assail  the  dignity  of  the 
States,  since  it  plants  their  authority  on  a  base  so  broad 
as  to  be  practically  immovable?  Federal  government 
and  State  governments  are  alike  exponents  of  the  national 
will,  and  the  effort  to  secede  on  the  one  hand,  and  to  un- 
constitutionally oppress  a  State  on  the  other,  are  alike 
defiances  of  the  national  will,  though,  if  successful,  the 
latter  may  be  atoned  for,  while  the  former  cannot.  It  is 
notorious  matter  of  fact  that,  in  a  peaceable  and  legal 
struggle  between  the  Federal  Government  and  a  State 
government,  the  national  sympathy  is  rather  with  the 
latter  than  with  the  former;  and  the  State  government, 
supported  by  the  consciousness  of  this  general  sympathy, 
and  aided  by  its  own  greater  intensity  of  interest,  has  a 
much  greater  probability  of  success.  If  the  struggle 
verges  toward  a  settlement  by  force,  national  sympathy 
for  the  State  government  decreases,  until  the  distinctive 
federal  authority  is  formally  or  actually  acknowledged ; 
and  then  the  controlling  national  feeling  shows  itself  by 
marking  as  a  victim  for  political  punishment  any  depart- 
ment or  officer  of  the  Federal  Government  that  has  been 
instrumental  in  thrusting  upon  a  State  the  alternative 
of  force  or  submission.  The  national  will  approved  the 
Federalist  measures  of  1798,  the  action  of  President 
Adams  against  Georgia  in  1824,  the  nullification  pro- 
clamation drawn  up  by  Edward  Livingston  against  South 
Carolina  in  1832,  and  the  forcible  suppression  of  ku-klux 
disorders  by  the  Grant  Administration  in  1871-3;  and  in 
all  these  cases  the  national  sympathy  almost  instantly 
showed  itself  against  the  authors  of  the  acts  which  had 
been  approved.  Even  in  ordinary  politics,  there  is  no 
greater  danger  to  an  American  administration  than  the 
well-  or  ill-founded  belief  that  it  is  endeavoring  to  coerce 
the  will  of  its  own  party  in  a  State.  "[American]  men," 


Confederacy  and  State  Sovereignty    357 

said  Hamilton,  bitterly,  "are  rather  reasoning  than 
reasonable  animals"  ;  and  the  national  devotion  to  a  fed- 
eral system  must  be  fully  taken  into  account  by  any  one 
who  would  attempt  to  study  American  political  history. 

And  we  cannot  doubt  that  the  national  feeling  is  justi- 
fied by  reason,  by  the  events  of  the  past,  and  by  the 
probabilities  of  the  future.  It  is  so  obviously  impossible 
for  any  mere  centralized  government  to  consult  wisely 
and  well  the  diverse  interests  of  California,  Maine,  and 
Florida,  as  far  apart  in  distance  and  climate  as  London, 
Teheran,  and  Morocco,  that  the  absolute  necessity  of  the 
federal  system  is  everywhere  recognized  without  ques- 
tion. The  people  of  each  State  feel  that  the  principle 
on  which  their  own  happiness  and  comfort  rest  would  be 
destroyed  if  they  should  connive  at  an  encroachment  by 
the  Federal  Government  upon  the  sphere  of  another 
State.  They  know  instinctively  that  in  so  vast  a  country 
the  choice  is  between  the  federal  system  and  disunion, 
for  the  most  solidly  based  centralized  government  could 
not  hold  the  nation  together  six  months ;  and  in  the  train 
of  disunion  come  diplomatic  relations,  international  wars, 
standing  armies,  and  the  subordination  of  the  many  to 
the  few.  Rather  than  admit  the  first  appearance  of  such 
evils,  they  have  denied  to  the  States  the  power  to  recall 
their  Senators ;  rather  than  suffer  the  reality,  they  have 
surrendered  the  dearest  prejudices  of  their  nature,  and 
conquered  and  reconstructed  a  portion  of  the  States  of 
the  Union.  They  perceive  that  a  federal  system,  so  far 
from  being  in  any  need  of  State  sovereignty,  is  injured 
by  the  first  appearance  of  State  sovereignty  and  the 
diplomatic  relations  implied  in  it ;  but  that  any  abandon- 
ment or  infringement  of  State  rights  is  an  insult  and  an 
injury  to  the  nation,  and  a  subtle  attack  upon  the  federal 
system,  in  which  alone  the  nation  can  maintain  its  unity. 

And  the  lessons  which  the  past  has  taught  are  of  such 
a  nature  that  the  future  can  only  add  force  to  them. 


358  The  Slavery  Controversy 

State  sovereignty,  with  its  shifting  possibilities  of  re- 
arrangements of  federal  associations,  disunions,  and  re- 
unions, might  have  been  possible  in  a  limited  area,  with 
small  population,  slight  internal  interests,  and  no  foreign 
intercourse;  but  it  was  impossible  even  in  1775,  and 
every  doubling  of  population  and  wealth  since  has  only 
made  the  impossibility  more  patent.  And  in  exactly  the 
reverse  order,  the  maintenance  of  State  rights,  compara- 
tively unimportant  in  1775,  has  grown  every  year  more 
essential  to  the  well-being  of  the  people,  whether  viewed 
as  States  or  as  a  nation.  The  area  of  the  State  of  New 
York  is  closely  similar  to  that  of  England,  and  there 
seems  to  be  no  great  reason  why  New  York  should  not 
expect  to  rival  England  in  population  and  in  wealth.  At 
any  rate,  every  advance  toward  that  point  is  a  stronger 
reason  not  only  why  the  welfare  and  happiness  of  the  in- 
creasing population  of  New  York  should  be  consulted, 
but  also  why  the  rest  of  the  country,  with  its  increasing 
stake  in  the  welfare  of  New  York,  should  consult  it  by 
maintaining  the  State  rights  of  New  York. 

In  this  essential  respect,  there  seems  at  present  to  be 
little  fear  for  the  future.  It  is,  of  course,  not  so  easy  for 
one  who  is  in  the  current  of  events,  as  for  one  who  looks 
from  the  outside,  to  calculate  exactly  their  force  and 
direction ;  but  so  far  as  can  be  seen  now,  the  intensity  of 
the  national  predilection  for  State  rights  is  increasing, 
not  diminishing.  Mr.  E.  A.  Freeman,  in  his  magazine 
article,  cited  below,  lays  stress  on  the  general  American 
substitution  of  the  word  "national,"  since  1860,  for  the 
word  "federal."  "It  used  to  be  'Federal  capital,'  'Fed- 
eral army,'  'Federal  revenue,'  etc.;  now,  the  word 
'national'  is  almost  always  used  instead.  This  surely 
marks  a  tendency  to  forget  the  federal  character  of  the 
National  Government,  or  at  least  to  forget  that  its  federal 
character  is  its  very  essence."  The  argument  would  be 
very  strong  if  the  change  had  taken  place  in  a  period  of 


Confederacy  and  State  Sovereignty    359 

peace;  but  the  change  really  shows  no  sign  of  perma- 
nence, and  is  only  one  of  the  last  waves  of  the  tremendous 
exertion  of  national  sovereignty  in  1861-5,  never,  it  is  to 
be  hoped,  to  be  again  made  necessary.  A  stronger  argu- 
ment is  drawn  from  the  passage  of  laws  by  Congress, 
such  as  the  National  Banking  Law,  the  General  Election 
Law,  and  a  few  other  statutes,  which  conflict  with  what 
were  long  considered  State  rights.  But  these  are  excep- 
tional cases,  due  to  causes  entirely  outside  of  State  rights. 
It  is  far  more  noteworthy  that  State  rights,  even  of  the 
conquered  States,  have  come  unscathed  through  the 
storm  of  a  desolating  war  directed  against  a  number  of 
the  States.  It  would  be  difficult  to  specify  any  point  in 
which  the  theory  of  government  by  States  has  been  seri- 
ously marred  since  the  adoption  of  the  Constitution. 
Wherein  do  the  people  of  New  York  or  Virginia  govern 
themselves  less  now  than  in  1789?  The  only  fear  to  the 
contrary  is  in  the  encroachments  of  the  Federal  judiciary; 
but  these  would  punish  and  correct  themselves  by  so 
clogging  the  Federal  courts  with  business  as  to  compel 
their  reformation  by  the  national  will.  And  while  the 
outlines  have  been  maintained,  the  State's  power  has 
grown pari passu  with  that  of  the  nation:  New  York  is 
now  a  stronger  and  richer  State,  a  more  powerful  govern- 
ment, a  more  valuable  friend  in  peace,  a  more  formidable 
enemy  in  war,  than  the  whole  United  States  in  1789. 
Under  the  silent  but  potentially  omnipotent  sovereignty 
of  the  nation,  New  York  has  always  enjoyed  a  power  of 
self-government  which  her  own  sovereignty  could  not 
have  made  more  absolute,  and  might  easily  have  made 
much  more  doubtful.  Under  the  shadow  of  the  power- 
ful commonwealths  of  Massachusetts  and  Pennsylvania, 
the  little  States  of  Rhode  Island  and  Delaware  are  living 
their  own  peculiar  life,  under  the  national  cegis,  with  an 
absolute  fearlessness  of  interference  from  their  neighbors 
for  which  many  a  stronger  State  elsewhere  might  well 


360  The  Slavery  Controversy 

have  bartered  the  Philistine  armor  of  "sovereignty." 
The  very  same  cause,  the  steady  growth  of  the  States  in 
population,  wealth,  and  material  interests,  which  would 
have  made  State  sovereignty  yearly  more  dangerous  and 
hateful  to  the  nation,  makes  State  rights  dearer  and  more 
evidently  essential. 

And  it  does  not  require  a  very  close  scrutiny  of  passing 
events  to  see  that  the  same  cause  which  has  just  been 
mentioned  is  actually  developing  a  deeper  shade  of  par- 
ticularism than  even  State  rights.  As  the  State  grows 
more  populous  and  wealthy,  a  growing  diversity  of  inter- 
ests in  different  parts  of  the  State  develops  a  particular- 
ist  feeling  within  the  State  itself.  The  germ  of  the 
feeling  has  always  existed  in  some  of  the  States.  West- 
ern and  eastern  Massachusetts,  New  York,  Pennsylvania, 
Virginia,  and  North  Carolina  have  quite  regularly  taken 
opposite  political  directions,  and  in  one  of  them  (Virginia) 
the  fissure,  expanding  under  the  force  of  open  war,  has 
resulted  in  the  formation  of  a  new  State.  But  in  all  the 
larger  States  there  are  indications  of  the  steady  growth 
of  the  feeling;  and  the  probability  is,  that,  as  soon  as 
population  becomes  dense,  the  pressure  of  conflicting  in- 
terests will  be  relieved  by  the  throwing  off  of  new  States. 
Already  New  York  has  three  fairly  defined  sections,  the 
west,  the  north,  and  the  southeast,  any  one  of  which  is 
a  potential  State.  The  enormous  and  diversified  area  of 
Texas  was  never  made  for  a  single  State ;  and  only  in- 
creasing density  of  population  is  needed  to  make  the 
same  thing  evident  in  other  cases.  The  silent  growth  of 
the  feeling  may  be  estimated  from  a  single  instance. 

In  1794  the  so-called  "Whiskey  Insurrection,"  '  in 
western  Pennsylvania,  was  suppressed  by  militia,  a  part 
of  the  force  being  drawn  from  New  Jersey,  Maryland, 
and  Virginia.  In  1877  the  same  region  was  the  scene 
of  a  part  of  the  railroad  riots,  and  the  attempt  was  made 

1  See  that  title. 


Confederacy  and  State  Sovereignty    361 

to  employ  militia  from  the  eastern  part  of  the  State  in 
restoring  order.  Let  him  who  remembers  the  delirium 
of  passion  with  which  men  of  all  classes  resisted  the  at- 
tempt, ask  himself  what  the  result  would  have  been  if 
New  Jersey,  Maryland,  or  Virginia  militia  had  again  been 
introduced,  and  say  whether  the  particularist  feeling  is 
less  strong  in  that  region  now  than  in  1794.  It  is  even 
evident  that  the  particularist  feeling  is  not  confined 
entirely  to  sections  of  States,  but  that  the  great  cities 
which  have  been  growing  up  on  our  soil  are  also  develop- 
ing a  particularism  of  their  own. 

The  shibboleth  of  "home  rule,"  the  abandonment  of 
State  and  national  parties  in  local  elections,  which  has  of 
late  years  developed  so  strong  a  following  in  Philadelphia, 
Brooklyn,  and  New  York  City,  is  only  a  phrasing  of  this 
new  and  deeper  shade  of  particularism,  which  will  come 
out  to  full  view  as  soon  and  as  fast  as  it  is  needed.  Mr. 
Freeman,  in  the  article  before  referred  to,  notes  this  very 
peculiarity:  "An  American  city  is  more  thoroughly  a 
commonwealth,  it  has  more  of  the  feelings  of  a  common- 
wealth, than  an  English  city  has."  Such  evident  ten- 
dencies may  well  offset  a  temporary  exaggeration  of  the 
word  national.  They  seem  to  show  that  the  people  of 
the  United  States  are  justified  in  their  abounding  con- 
fidence that  their  political  machine  has  the  power  to  cor- 
rect its  own  errors  and  to  guard  against  its  own  dangers. 

A  complete  definition  of  State  rights  is  an  impossibility. 
Theoretically,  they  consist  of  all  the  powers  of  govern- 
ment which  the  nation  has  not  transferred  to  the  Federal 
Government  or  forbidden  the  States  to  exercise.  By 
leaving  the  States  and  their  governments  in  situ  at  the 
outbreak  of  the  Revolution,  the  nation  confirmed  to 
them  a  power  over  their  own  territory  practically  un- 
limited at  the  time;  but  the  rights  and  powers  which 
they  have  since  lost  have  gone  to  the  General  Government 
by  direct  transfer.  The  rights  of  the  Federal  Government 


362  The  Slavery  Controversy 

and  of  a  State  government  must  be  ascertained  by  two 
directly  opposite  questions:  in  the  case  of  the  former  we 
must  ask  what  rights  have  been  directly  transferred 
to  it  by  the  Federal  Constitution ;  but  in  the  case  of  the 
latter,  what  rights  and  powers  have  been  forbidden  to  it 
by  the  State  or  Federal  constitutions.  In  the  case  of 
doubtful  powers  the  presumption  is  against  the  Federal 
Government  and  in  favor  of  the  State,  for  the  nation  has 
given  the  Federal  Government  a  limited  charter,  while  it 
has  only  circumscribed  the  State  government  in  certain 
particulars.  The  onus  probandi  is  upon  the  asserter  of 
Federal  authority  and  the  denier  of  State  authority.  The 
State's  direct  and  indirect  powers  cover  all  the  field  of 
daily  life  and  interests,  while  multitudes  of  persons  live 
and  die  without  once  coming  directly  in  contact  with 
Federal  power  or  practically  realizing  the  existence  of  the 
Federal  Government  except  by  participation  in  biennial 
elections.  But  even  this  does  not  quite  express  the  sum- 
total  of  State  rights.  The  States  still  assert  a  power  to 
punish  for  treason,  though  the  power  in  offences  against 
the  United  States  has  been  transferred  to  Congress;  and 
there  are  certain  powers,  such  as  the  passage  of  insolvency 
laws,  and  the  regulation  of  congressional  elections,  which 
they  exercise  in  default  of  action  by  Congress.  And,  in 
general,  they  have  whatever  powers  their  courts  may 
define  as  their  right,  and  may  succeed,  by  persistence  or 
ingenuity,  in  maintaining  against  the  Federal  courts, 
always  provided  that  the  controversy  does  not  take  the 
aspect  of  force :  in  that  case  the  State  must  yield  to  the 
more  direct  representatives  of  the  national  will.  Even 
in  this  latter  case,  the  chances  are  still  decidedly  in  favor 
of  the  State ;  for  it  has,  unless  it  is  very  evidently  in  the 
wrong,  the  pronounced  sympathy  of  the  nation,  which 
works  in  its  favor  in  innumerable  ways.  Conflicts  of  this 
kind  are  not  uncommon :  one  is  in  progress  at  the  present 
writing  (1883)  between  the  Federal  and  State  courts  in 


Confederacy  and  State  Sovereignty    363 

New  Jersey.  They  are  always  compromised  or  evaded, 
and  results  will  show  that  the  State  court,  by  claiming 
more  than  its  right,  regularly  obtains  all  it  can  fairly  ask. 

On  Confederate  States  see  Jefferson  Davis's  Rise  and 
Fall  of  the  Confederate  States;  A.  H.  Stephens's  War 
Between  the  States ;  Pollard's  Life  of  Davis,  First  Year 
of  the  War,  and  Lost  Cause ;  Draper's  Civil  War ; 
Greeley's  American  Conflict ;  Victor's  History  of  the 
Rebellion  ;  Moore's  Rebellion  Record ;  Appleton's  Annual 
Cyclopedia  (1861-5);  von  Borcke's  Memoirs  of  the  Con- 
federate War  for  Independence ;  Hitchcock's  Chronologi- 
cal Record  of  the  American  Civil  War ;  Centz's  Davis 
and  Lee;  Lunt's  Origin  of  the  Late  War;  Bartlett's 
Bibliography  of  the  Rebellion,  and  other  authorities  under 
Rebellion ;  McPherson's  History  of  the  Rebellion  ;  Foote's 
War  of  the  Rebellion ;  Dabney's  Defence  of  Virginia ; 
Gilmer's  Southern  Politics. 

On  State  Sovereignty  see,  in  general,  Constitution, 
Art.  I.,  §§  4,  8-10;  Art.  III.,  §§  2,  3;  Art.  IV.,  §§  3,  4; 
Art.  V. ;  Art.  VII. ;  and  Amendments,  Arts.  X.-XV. 
The  theory  of  State  sovereignty  is  best  stated  in  I 
Tucker's  Blackstone,  Appendix,  note  D,  and  in  Story's 
Commentaries,  §§  310-318.  For  the  arguments  in  favor 
of  it  see,  Centz  's  Republic  of  Republics ;  I  Calhoun's 
Works;  2  ib.,  197,  262;  3  ib.,  140;  I  Stephens's  War 
Between  the  States  (see  index);  Fowler's  Sectional  Contro- 
versy, 351;  Harris's  Political  Conflict  in  America,  212; 
Pollard's  Lost  Cause,  33.  For  the  Madison  theory,  see 
Federalist  (No.  39);  North  American  Review,  October, 
1830,537;  2  Curtis  s  History  of  the  Constitution,  377.  See 
also  i  Austin's  Province  of  Jurisprudence,  226;  I  von 
Hoist's  United  States  (Lalor's  trans.),  1-63;  5  Bancroft's 
United  States,  500;  6  ib.y  351;  Greene's  Historical  View 
of  the  Revolution,  119;  Prince's  Confederation  vs.  Consti- 
tution; 2  Rives's  Life  of  Madison,  371 ;  Hurd's  Law  of 


364  The  Slavery  Controversy 

Freedom  and  Bondage,  cap.  xi. ;  3  Webster's  Works,  448; 
i  Benton's  Thirty  Years'  View,  360;  Brownson's  Ameri- 
can Republic,  195,  239;  Mulford's  The  Nation,  310; 
Goodwin's  Natural  History  of  Secession ;  H.  Adams's 
Life  of  Randolph  ;  Poore's  Federal  and  State  Constitu- 
tions;  Journals  of  Congress  (under  dates  named);  1-3 
Elliot's  Debates  (under  dates  and  States  named) ;  Dillon's 
Notes  on  Historical  Evidence  ;  2  Whig  Review,  45  5  ;  Free- 
man's  Impressions  of  America  ;  Harper's  Magazine,  June, 
1880  (G.  T.  Curtis's  article);  I  Bancroft's  History  of  the 
Constitution,  146;  2  ib.,  47,  332;  Hurd's  Theory  of  Our 
National  Existence,  104,  526;  Willoughby's  The  Nature 
of  the  State;  Woodburn's  The  American  Republic ;  Bur- 
gess's Political  Science  and  Constitutional  Law. 


CHAPTER   XII 

THE    REBELLION 

HPHE  name  Rebellion  has  been  retained  in  this  work 
1  for  the  struggle  of  1861-5,  in  preference  to  that 
of  Civil  War,  which  has  latterly  obtained  considerable 
currency  as  a  milder  expression.  Whether  it  was  a 
rebellion  or  a  civil  war  could  only  be  decided  by  its 
result.  If  it  had  been  successful,  it  would  have  decided 
that  the  United  States  had  never  been  a  nation  in  its 
domestic  relations,  and  the  conflict  between  the  States  of 
a  voluntary  confederacy  might  very  properly  have  been 
termed  a  civil  war.  As  it  was  unsuccessful,  and  as  the 
nation  maintained  its  previous  and  future  entity,  the  logic 
of  events  has  stamped  the  struggle  as  a  rebellion  by  indi- 
viduals, not  a  civil  war  between  States.  It  is  true  that 
many  of  the  enactments  of  Congress  and  of  the  judicial 
decisions  from  1861  to  1867  can  only  be  explained  on  the 
theory  that  the  war  was  maintained  against  States:  these 
instances  have  been  collected  by  Mr.  Kurd,  as  cited 
below.  But  they  are  opposed  by  more  numerous  in- 
stances to  the  contrary,  and  are  rather  proofs  of  haste 
than  of  a  consistent  theory  or  policy.  Legally,  it  may 
have  been  a  civil  war  as  well  as  a  rebellion ;  politically,  it 
was  a  rebellion  only.  Mr.  A.  H.  Stephens,  who  regards 
the  struggle  as  a  revolution  by  which  a  voluntary  confed- 
eracy was  transformed  into  a  nation,  very  properly  entitles 
his  history  of  it  A  Constitutional  View  of  the  War  Between 
the  States  ;  but  even  he  would  be  compelled  to  call  any 

365 


366  The  Slavery  Controversy 

similar  struggle  in  the  future  a  rebellion.  The  name  is 
retained  here,  therefore,  not  in  any  invidious  sense,  but 
as  one  which  cannot  truthfully  be  avoided.1 

After  secession  became  a  fact  in  South  Carolina  and 
before  the  final  outbreak  of  war — that  is,  between  De- 
cember 20,  1860,  and  April  12,  1861, — various  proposals 
were  made,  in  Congress  and  out,  to  preserve  peace  and 
union  by  further  conciliation  and  compromise.  The 
most  important  of  these  proposals  was  the  Crittenden 
Compromise. 

Crittenden  Compromise. — In  1860  Senator  John  J.  Crit- 
tenden, of  Kentucky,  introduced  a  proposition  to  amend 
the  Constitution  by  dividing  the  Territories  between  the 
two  sections  on  the  line  of  the  Missouri  Compromise. 
His  amendment  was  approved  by  the  Legislatures  of 
Virginia,  Kentucky,  Tennessee,  and  New  Jersey,  in  their 
instructions  to  their  delegates  to  the  Peace  Conference  in 
1861,"  and  was  vainly  urged  by  him  throughout  the  ses- 
sion of  1 860-61.  In  the  House,  January  14,  1861,  an 
attempt  to  substitute  it  for  the  report  of  the  Committee 
of  Thirty-Three  was  lost  by  a  vote  of  80  to  113;  in  the 
Senate  it  was  brought  up  March  2d,  and  lost  by  a  vote 
of  19  to  20. 

Had  it  been  adopted  it  would  have  been,  in  substance, 
as  follows:  XIII.  Section  i. — Slavery  is  abolished  in  all 
territory,  present  or  future,  north  of  latitude  36°  30'; 
south  of  that  line  it  shall  be  recognized  and  protected  by 
every  department  of  Government,  and  never  interfered 
with  by  Congress.  When  the  Territory  becomes  a  State, 
its  people  shall  settle  its  condition,  slave  or  free.  Sec.  2. 
— Congress  shall  not  abolish  slavery  in  forts  and  other 
Federal  territory  in  slave  States.  Sec.  3. — Congress  shall 
not  abolish  slavery  in  the  District  of  Columbia  so  long 
as  Virginia  or  Maryland  permits  slavery,  nor  in  any  event 
without  consent  of  the  inhabitants,  and  compensation. 

1  See  State  Sovereignty.  *  See  Conference,  Peace. 


The  Rebellion  367 

Congressmen  and  Federal  office-holders  at  ^Washington 
shall  never  be  prohibited  from  bringing  their  slaves 
thither.  Sec.  4. — The  inter-State  slave  trade,  by  land, 
river,  or  sea,  shall  never  be  prohibited.  Sec.  5. — The 
United  States  shall  pay  the  owner  the  full  value  of  any 
fugitive  slave  rescued  by  violence  or  intimidation;  the 
United  States  may  sue  the  county  where  the  rescue  took 
place,  for  the  value  paid ;  and  the  county,  in  like  manner, 
may  sue  the  wrong-doer.  Sec.  6. — No  future  amend- 
ment shall  ever  affect  the  five  preceding  sections,  nor 
Article  I,  §  2,  1  3,  nor  Article  IV,  §  2,  ^  3,  of  the  Con- 
stitution; and  no  amendment  shall  ever  give  Congress 
power  to  abolish  slavery  in  a  slave  State. 

To  this  were  added  four  resolutions:  i,  asserting  the 
constitutionality  of  the  Fugitive  Slave  Law;  2,  earnestly 
requesting  the  repeal  of  the  personal  liberty  laws;  3, 
promising  the  amendment  of  the  Fugitive  Slave  Law  by- 
making  the  commissioner's  fee  the  same  whether  his  de- 
cision was  for  or  against  the  claimant,  and  by  restricting 
the  use  of  the  posse  comitatus  to  cases  of  resistance  or 
rescue ;  and  4,  promising  the  stringent  suppression  of  the 
African  slave  trade. 

The  Peace  Conference  was  another  notable  effort  to  pre- 
serve peace  on  the  basis  of  Northern  concessions.  This 
was  a  movement  within  the  States,  outside  of  Congress, 
in  which  Virginia  and  Ex-President  Tyler  took  the  lead. 
On  January  19,  1861,  the  Legislature  of  Virginia  passed 
a  series  of  resolutions  inviting  the  other  States  of  the 
Union  to  meet  in  Washington,  February  4,  1861,  to  unite 
with  Virginia  in  a  final  effort  "to  adjust  the  present  un- 
happy difficulties,  in  the  spirit  in  which  the  Constitution 
was  originally  formed,  so  as  to  afford  the  people  of  the 
slaveholding  States  adequate  guarantees  for  the  security 
of  their  rights."  Ex-President  Tyler  was  president  of 
the  convention,  in  which,  at  different  times,  as  many 
as  twenty-one  States  were  represented.  Some  of  these 


368  The  Slavery  Controversy 

delegates  were  appointed  by  the  State  legislatures,  some 
by  the  governors.  The  convention  was  marked  by  lack  of 
harmony  in  its  membership  and  proceedings.  Some  of 
the  Northern  delegates,  "stiff-backed  men,"  as  Zach. 
Chandler,  of  Michigan,  expressed  it,  felt  that  there  was 
no  need  of  further  guarantees  of  Southern  rights,  and 
that  the  resolutions  favored  by  the  majority — substan- 
tially the  Crittenden  Compromise — were  only  another 
effort  of  the  slaveholding  interest  to  extort  by  threat  of 
secession  that  which  it  had  failed  to  secure  at  the  polls. 
The  body  had  neither  legal  authority  nor  popular  con- 
fidence, and  as  it  sat  with  closed  doors  and  voted  by 
States  its  representative  character  was  considerably  im- 
paired. Its  proposed  constitutional  amendment  guaran- 
teeing slavery  in  Territories  south  of  36°  30'  had  been 
voted  for  in  the  conference  by  a  very  small  majority,  the 
votes  of  three  States  not  being  counted,  since  they  were 
evenly  divided.  So  the  recommendation  of  the  confer- 
ence came  to  Congress  with  but  little  force  behind  it — 
Ex-President  Tyler  himself  repudiating  its  conclusions  as 
unsatisfactory  to  the  South, — and  the  proposed  amend- 
ment received  but  little  notice.  "The  historical  signifi- 
cance of  the  Peace  Convention,"  says  Rhodes,  "consists 
in  the  evidence  it  affords  of  the  attachment  of  the  border 
slave  States  to  the  Union,  and  the  lingering  hope  of  re- 
adjustment in  North  Carolina  and  Tennessee"  (vol.  iii., 
p.  307).  The  Union  men  of  these  States  cherished  the 
vain  hope  that  this  convention  would  adopt  a  plan  that 
would  satisfy  the  slave  States  on  the  border  and  bring 
back  into  the  Union  those  that  had  seceded.  It  appears 
that  Tyler  was  using  this  "Union  Convention"  as  a 
means  of  promoting  disunion  in  Virginia,  as  on  the  day 
after  the  adjournment  of  the  convention,  in  a  speech  from 
the  capitol  steps  at  Richmond,  he  urged  the  secession  of 
Virginia  on  the  plea  that  there  was  no  hope  of  adjust- 
ment. It  was  concession  to  Southern  interests  and  not 


The  Rebellion  369 

the  preservation  of  the  Union  for  which  Tyler  was  chiefly 
concerned. 

It  is  impossible  to  date  the  outbreak  of  the  Rebellion 
exactly.  The  secession  of  South  Carolina,  or  of  any  other 
State,  cannot  be  taken  as  the  date,  for  it  might  have  been 
possible  for  a  State  to  pass  an  ordinance  of  secession, 
refuse  to  take  part  in  the  government,  and  yet  remain 
peacefully  in  the  Union  so  long  as  the  execution  of  the 
laws  was  not  resisted.  The  seizures  of  Federal  forts, 
arsenals,  mints,  and  vessels  in  January,  1861,  bear  far 
more  affinity  to  a  rebellion ;  and  yet  these  were  so  irregu- 
lar and  scattered,  some  of  them  with,  others  without,  and 
others  disavowed  by,  the  authority  of  the  State,  that 
there  seems  even  yet  to  have  been  a  locus  penitentice  to 
the  participants.  But  the  organization  of  the  new  gov- 
ernment at  Montgomery1  was  a  different  matter;  this  was 
a  step  which  there  was  no  retracing,  and  with  it  the  Re- 
bellion takes  a  tangible  form.  From  that  time  there  were 
two  incompatible  claims  to  the  national  jurisdiction  of 
the  seceding  States,  and  neither  of  the  two  claimants 
could  exist  except  by  forcibly  ending  the  claim  of  the 
other.  War  was  a  necessity,  and  the  Rebellion  a  fact  to 
be  acknowledged. 

The  Rebellion,  however,  was  not  at  first  acknowledged, 
nor  were  instant  measures  taken  for  its  suppression.  The 
responsibility  for  this  mistake  has  been  concentrated  by 
popular  belief  upon  the  head  of  President  Buchanan,  but 
it  is  unfair  to  deny  a  very  large  share  of  it  to  the  politi- 
cians of  all  parties  in  and  out  of  Congress,  to  their  com- 
plete ignorance  of  their  constituents,  of  their  associates, 
and  of  themselves,  and  to  the  inevitable  tardiness  of 
action  in  a  republic.  Hardly  a  Northern  man  in  Congress 
felt  sure  of  his  footing,  or  felt  certain  how  far  his  con- 
stituents, who  were  quietly  and  steadily  working  at  the 
plough,  or  in  the  office,  or  at  the  mill,  would  support  him 

1  See  Confederate  States. 

VOL.  II. — 24. 


37°  The  Slavery  Controversy 

in  the  hitherto  unheard-of  measure  of  "making  war  upon 
a  sovereign  State."  And  so,  through  the  whole  dreary 
winter  of  1 860-61,  the  air  of  Congress  was  redolent  with 
propositions  for  compromise ;  with  protestations  of  belief 
that  the  seceding  States  could  never  mean  it,  and  that 
the  Republic  would  yet  go  safely  through  this  crisis ;  and 
with  appeals  to  the  erring  sisters  to  reason  together,  to 
pause  a  moment,  to  reflect  and  see  if  something  might 
not  yet  be  done ;  but  so  far  as  preparations  to  suppress 
the  Rebellion  were  concerned,  that  Congress,  on  its  final 
adjournment,  was  as  if  it  had  never  existed. 

It  is  not  true  that  Northern  politicians  hurried  the 
Northern  people  into  the  war  against  the  Rebellion  ;  it  is 
rather  true  that  the  uprising  of  the  North  and  West,  after 
the  capture  of  Fort  Sumter,  April  13,  1861,  educated 
their  politicians  as  they  had  never  been  educated  before. 
A  decade  before,  July  22,  1850,  Clay  had  passionately 
said  of  Rhett  in  the  Senate:  "If  he  pronounced  the 
sentiment  attributed  to  him,  of  raising  the  standard  of 
disunion  and  of  resistance  to  the  common  government, 
if  he  follows  up  that  declaration  by  corresponding  overt 
acts,  he  will  be  a  traitor,  and  I  hope  he  will  meet  the  fate 
of  a  traitor."  Unfortunately,  it  required  a  popular  up- 
rising to  bring  the  average  Congressman  up  to  Clay's 
level. 

It  is,  therefore,  almost  a  waste  of  space  to  detail  the 
failures  of  Congress  to  act  in  1860-61.  The  President 
auspiciously  opened  the  session  with  a  message  which 
John  P.  Hale,  in  the  Senate,  very  fairly  summed  up 
under  three  heads:  "first,  that  South  Carolina  has  good 
cause  to  secede ;  second,  that  she  has  no  right  to  secede ; 
third,  that  we  have  no  right  to  prevent  her  from  seced- 
ing." Much  of  the  time  of  the  session  was  consumed  in 
the  consideration  of  proposed  compromises,1  the  debates 
being  occasionally  interrupted  by  the  farewells  and  de- 

1  See,  for  the  principal  ones,  Compromises,  VI.  ;  Congress,  Peace. 


The  Rebellion  37* 

parture  of  the  Representatives  of  the  States  which 
seceded  without  waiting  to  be  conciliated. 

In  the  South  everything  was  drifting  straight  toward 
war.  In  Charleston  harbor  Major  Anderson,  with  his 
force  of  eighty  men,  had  abandoned  Fort  Moultrie,  De- 
cember 26,  1860,  and  established  himself  in  Fort  Sumter, 
a  far  stronger  position,  commanding  the  mouth  of  the 
harbor.  The  same  day  commissioners  from  South  Caro- 
lina to  the  President  arrived  in  Washington,  but  he  re- 
fused to  recognize  them  officially,  and  they  went  home 
again,  January  3d.  Thereafter  the  State  continued  to 
erect  batteries  at  every  advantageous  point  around  the 
fort,  and  these  were  strong  enough  to  fire  upon,  January 
9th,  and  drive  back  the  steamer  Star  of  the  West,  with 
provisions  for  the  fort. 

The  Confederate  Government,  immediately  after  its 
organization,  appointed  three  commissioners  to  treat  with 
the  Federal  Government.  These  arrived  at  Washington 
March  5th,  and  at  once  opened  communication  with 
Seward,  the  new  Secretary  of  State.  March  I5th,  Seward 
refused  to  recognize  them  as  diplomatic  agents  of  any 
government,  but  his  reply  was  not  delivered  to  them 
until  April  8th,  on  which  day  official  notification  was 
sent  to  Governor  Pickens,  of  South  Carolina,  that  Fort 
Sumter  would  be  provisioned  at  once,  and  by  force,  if 
necessary.  On  this  delay  of  twenty-three  days  in  deliver- 
ing the  reply,  the  commissioners  based  a  charge  of  bad 
faith  against  Seward,  but  it  seems  to  be  unjust.  Seward 
seems  to  have  been  personally  in  favor  of  abandoning 
Fort  Sumter,  and  the  reply  was  sent  only  when  the  rest 
of  the  Cabinet  had  persuaded  the  President  not  to  yield. 
The  notification  to  Pickens  was  effectual  in  one  way. 
Before  the  relief  expedition  could  reach  the  fort,  it  had 
been  summoned  and  bombarded,  and  had  surrendered. 

Some  of  the  Northern  States  were  at  least  partially 
prepared  for  the  struggle.  In  1857  and  1858  the  militia 


372  The  Slavery  Controversy 

of  Ohio  had  .been  thoroughly  reorganized  by  Governor 
Chase.  Governor  Andrew,  of  Massachusetts,  in  his  in- 
augural address,  in  January,  1861,  had  advised  the  Legis- 
lature to  put  a  part  of  the  militia  on  a  war  footing,  and 
immediately  afterward  had  sent  an  agent  to  Europe  to 
purchase  arms,  and  invited  co-operation  by  Maine  and 
New  Hampshire.  January  nth,  the  New  York  Legisla- 
ture voted  to  offer  the  whole  military  force  of  the  State 
to  the  Government,  and  five  days  later  the  New  York 
City  militia  formally  offered  their  services  to  the  Presi- 
dent. But  all  these  were  exceptional  instances,  and  as  a 
general  rule  the  Northern  and  Western  States  were  quite 
unprepared. 

The  President's  proclamation,  April  I5th,  commanding 
insurgents  to  disperse  within  twenty  days,  and  calling  for 
seventy-five  thousand  of  the  militia  to  secure  the  execu- 
tion of  the  laws  in  the  Southern  States,  met  with  varying 
responses.  In  the  South  the  proclamation  was  answered 
by  the  rapid  secession  of  those  States  which  had  hitherto 
refused  to  secede,  but  were  opposed  to  coercion.1  In  the 
border  States,  Missouri,  Kentucky,  Delaware,  and,  prob- 
ably most  important  of  all,  Maryland,  refused  to  secede, 
and  gradually  came  over  to  an  acceptance  of  the  idea  of 
coercion.  In  the  North  the  response  to  the  call  for  men 
was  instant,  and  the  quotas  of  the  States  were  filled  twice 
over.  One  regiment,  the  Massachusetts  Sixth,  mustered 
early  on  the  morning  of  April  i6th,  and  reached  Wash- 
ington three  days  afterward,  after  the  first  loss  of  life  in 
the  Rebellion,  during  a  street  fight  with  a  mob  in  Balti- 
more, April  igth.  The  day  before,  several  hundred  un- 
armed Pennsylvania  troops  had  arrived.  April  2 5th, 
troops  began  to  pour  into  Washington,  having  made 
their  way  around  Baltimore,  and  the  capital  became,  as 
it  remained  for  four  years,  an  entrenched  camp. 

In  the  meantime,  by  alternate  proclamations  of  Presi- 
1  See  Secession. 


The  Rebellion  373 

dents  Lincoln  and  Davis,1  open  war  had  begun,  the  latter 
regarding  it  as  a  war  declared  by  the  United  States 
against  the  Confederate  States,  the  former  as  the  sup- 
pression of  a  rebellion.  The  two  difficulties  which  most 
embarrassed  President  Lincoln  are  elsewhere  detailed"; 
but,  besides  these,  there  were  others,  more  serious,  if  not 
so  annoying.  The  loss  of  Harper's  Ferry,  April  i8th, 
involved  a  loss  of  very  much  of  the  Government  ma- 
chinery for  making  arms.  The  burning  of  Gosport  Navy 
Yard,  April  2Oth,  almost  annihilated  the  little  remnant 
of  the  Federal  navy.  The  wholesale  resignations  of 
Southern-born  and  even  Northern-born  officers  in  the 
public  service  had  seriously  crippled  it,  and  of  those  who 
remained  it  was  impossible  to  know  whom  to  trust,  or  to 
be  confident  that  any  given  officer  would  not  resign  with- 
out notice  and  betake  himself  to  Montgomery.  The 
Treasury  had  been  so  nearly  bankrupted  in  the  preceding 
December  that  the  robbery  of  about  $1,000,000  from  the 
Indian  trust  fund  in  the  War  Department  could  hardly 
be  made  good.  An  army,  navy,  and  treasury  were  to 
be  evolved  out  of  nothing,  by  an  Administration  and  a 
people  who  knew  nothing  of  war,  and  all  was  to  be  done 
without  legal  appropriations  of  money  or  authorization 
by  law,  for  Congress,  by  the  President's  summons,  was 
not  to  meet  until  July  4th. 

For  this  failure  to  summon  the  special  session  for  an 
earlier  date,  Lincoln  has  been  sometimes  severely  cen- 
sured, but  it  was  either  very  fortunate,  or  the  result  of  a 
wise  forecast.  So  late  as  July  there  were  among  the 
members  of  Congress  several,  such  as  Breckinridge  and 
Burnett,  of  Kentucky,  who  were  with  the  Confederacy 
in  spirit,  and  were  soon  afterward  with  it  in  the  body. 
The  number  of  such  would  undoubtedly  have  been  much 
larger  if  May  ist  had  been  fixed  for  the  meeting  of  Con- 
gress. And,  further,  Congress  would  have  been  divided 

1  See  Alabama  Claims.  *  See  Habeas  Corpus. 


374  The  Slavery  Controversy 

and  probably  incompetent  at  the  earlier  date.  A  part  of 
its  members  would  have  come  only  to  renew  the  tedious 
attempts  at  compromise  of  the  past  winter,  and  a  part 
animated  only  by  the  enthusiasm  of  the  Sumter  rising; 
and  internal  dissension  would  have  had  more  attention 
than  the  public  good.  As  it  was,  when  Congress  met, 
the  time  for  conciliation  and  compromise  was  evidently 
past;  a  sober  realization  of  the  enormous  task  to  come 
had  taken  the  place  of  the  first  inconsiderate,  and  some- 
times foolish,  excitement ;  and  Congress  was  a  homogene- 
ous body,  well  fitted  for  the  emergency. 

When  Congress  met,  the  area  of  the  Rebellion  had 
been  fairly  defined.  Its  northern  boundary  was  an  irregu- 
lar line  from  the  Atlantic  to  the  Gulf  of  Mexico,  following 
the  Potomac  and  the  southern  boundary  of  Pennsylvania 
to  the  Blue  Ridge;  then  trending  southwest  through 
western  Virginia  and  west  through  southern  Kentucky  to 
the  Mississippi ;  thence  west  through  central  Missouri  to 
Kansas,  and  south  and  southwest  to  the  Gulf  of  Mexico, 
taking  in  the  Indian  Territory,  whose  people  had  replaced 
their  former  treaties  by  new  ones  with  the  Confederate 
States,  and  Texas.  South  of  this  line  the  whole  people 
was  in  rebellion,  for  the  sincerest  Union  men  among  the 
local  leaders  felt  bound  to  obey  the  final  action  of  the 
State,  and  the  new  national  government  claimed  and  re- 
ceived the  allegiance  of  the  doubtful  mass.  Within  this 
line  the  Southern  States  stood  in  the  attitude  of  a  be- 
leaguered fortress,  covering  an  area  of  more  than  700,000 
square  miles,  with  a  line  of  investiture  of  10,500  miles, 
and  containing  within  it  a  population  of  8,000,000  whites, 
1,400,000  of  them  fighting  men,  and  4,000,000  blacks, 
most  of  whom  remained  faithful  laborers  to  the  end. 
The  military  and  naval  events  of  the  Rebellion  need  be 
only  briefly  summed  up  here. 

At  first  the  Rebellion  was  to  be  overthrown  by  the 
"anaconda  system,"  if  it  can  be  called  a  system.     The 


The  Rebellion  375 

line  of  investiture  was  to  be  assailed  at  every  available 
point,  and  the  Rebellion  was  to  be  pressed  to  death.  In 
the  East  this  idea  had  several  important  results,  only  one 
of  which,  the  blockade,  was  of  any  use,  if  the  captures  of 
Port  Royal  and  Hatteras  are  to  be  considered  as  an  in- 
tegral part  of  the  blockading  system.  Outside  of  the 
blockade,  without  which  the  Rebellion  could  never  have 
been  suppressed,  it  is  very  doubtful  whether  any  military 
operations  in  the  East  were  ever  of  any  great  service,  be- 
yond employing  a  large  part  of  the  Confederate  armies 
to  counteract  them.  Even  if  they  had  been  successful  in 
the  first  years  of  the  war,  they  could  only  have  had  the 
distinctly  evil  result  of  pushing  the  Rebellion,  with  its 
natural  energies  unimpaired,  into  the  infinitely  stronger 
positions  of  its  central  territory. 

In  the  West  the  one  great  object  of  desire  was  at  first 
the  opening  of  the  Mississippi  to  the  Gulf,  and  this  was 
effected  by  the  capture  of  New  Orleans,  April  24-27, 
1862,  by  the  capture  of  Vicksburg  and  Port  Hudson, 
July  4  and  8,  1863,  and  a  countless  number  of  subordi- 
nate battles.  But  during  this  struggle  the  war  had  prac- 
tically been  ended,  though  indirectly,  for  the  enormous 
wedge  of  highland  east  of  the  Mississippi,  running  south 
into  the  heart  of  the  Confederacy,  and  the  natural  cita- 
del of  the  continent,  was  almost  entirely  in  the  hands  of 
the  Western  armies.  In  November,  1864,  Sherman's 
army  gathered  on  the  southern  edge  of  the  great  citadel, 
and,  assured  of  Thomas's  ability  to  master  the  only  Con- 
federate army  in  their  rear,  had  only  to  choose  the  direc- 
tion in  which  they  should  pour  down  upon  the  plains 
below  and  push  the  Rebellion  from  the  mountains  to  the 
coast.  Thereafter  there  could  be  but  one  object  for  the 
officers  and  men  of  the  Confederate  armies,  to  maintain 
undiminished  to  the  end  that  high  reputation  for  personal 
bravery  which  the  national  armies  have  always  and  cheer- 
fully acknowledged.  Lee's  surrender  took  place  April  9, 


376  The  Slavery  Controversy 

1865,  and  the  first  amnesty  proclamation  of  President 
Johnson,  May  29th,1  may  be  taken  as  the  formal  close 
of  the  Rebellion,  though  isolated  surrenders  continued 
throughout  the  following  month. 

During  this  long  struggle,  another  was  going  on  at 
Washington,  even  more  difficult.  In  the  field  the  gen- 
eral line  of  success  was  only  developed  when  the  original 
disadvantages  of  civil  life  had  worn  away,  when  the  origi- 
nal leaders,  who  fought  with  one  eye  on  the  war  and  the 
other  on  home  politics,  had  been  eliminated  or  forced  to 
subordinate  positions,  and  when  the  new  group  of  pro- 
fessional soldiers  had  been  developed,  Grant,  Sherman, 
Sheridan,  McPherson,  and  others,  who  were  for  the  time 
absolutely  reckless  of  political  and  civil  considerations, 
and  who  knew  but  one  object — war.  But  at  Washington 
no  such  development  could  or  ought  to  have  taken  place. 
There  politics  had  to  have  at  least  an  equal  consideration 
with  war,  and  the  difficulties  arising  from  the  complica- 
tion of  the  two  subjects  did  not  cease  even  with  the 
cessation  of  the  war  itself. 

The  Thirty-seventh  Congress  met  July  4,  1861.  In 
the  Senate  there  were  thirty-one  Republicans  and  eigh- 
teen opposition,  ten  of  the  latter  being  Democrats,  and 
eight  "Unionists,"  remnants  of  the  old  "American 
party,"  such  as  Garret  Davis,  of  Kentucky,  and  Anthony 
Kennedy,  of  Maryland,  supporters  of  the  war,  and  op- 
ponents of  every  interference  with  slavery.  In  the  House 
there  were  106  Republicans  and  seventy-two  opposition, 
forty-two  of  the  latter  being  Democrats  and  thirty 
"Unionists."  The  House  voted  to  consider  at  this  ses- 
sion only  bills  relating  to  the  military,  naval,  and  finan- 
cial operations  of  the  Government;  and  July  i$th,  by  a 
vote  of  121  to  5,  it  pledged  itself  to  vote  any  number  of 
men  and  any  amount  of  money  necessary  to  put  down 
the  Rebellion.  Laws  were  passed,  by  heavy  majorities, 

1  See  Amnesty. 


The  Rebellion  377 

to  authorize  a  loan  of  $250,000,000,  to  define  and  punish 
conspiracy,  to  increase  the  tariff,  to  appropriate  money 
for  the  army  and  navy,  to  suppress  insurrections,  to 
authorize  the  President  to  collect  the  revenue  in  Federal 
vessels  or  to  close  Southern  ports  in  case  collection  was 
impossible  (July  I3th),  to  call  out  500,000  volunteers,  if 
the  President  should  think  so  many  necessary  (July  22d), 
and  to  confiscate  property,  including  slaves,1  if  permitted 
to  be  employed  against  the  Government  (August  6th). 
A  resolution  to  validate  and  confirm  the  President's 
"extraordinary  acts,  proclamations,  and  orders,"  his 
calling  out  men,  blockading  Southern  ports,  and  sus- 
pending the  privilege  of  the  writ  of  habeas  corpus,  failed 
to  pass,  but  was  made  the  third  section  of  the  act  of 
August  6th,  to  increase  the  pay  of  the  army.* 

An  important  act  of  the  session  was  the  passage  of  a 
resolution  that  the  war  had  been  forced  on  the  Govern- 
ment by  Southern  disunionists ;  that  it  was  waged  by  the 
Government  in  no  spirit  of  oppression,  and  for  no  pur- 
pose of  conquest,  subjugation,  or  interfering  with  the 
rights  or  established  institutions  of  the  seceding  States, 
but  to  defend  and  maintain  the  supremacy  of  the  Consti- 
tution, and  to  preserve  the  Union  with  all  the  dignity, 
equality,  and  rights  of  the  several  States  unimpaired ; 
and  that,  as  soon  as  these  objects  were  accomplished,  the 
war  ought  to  cease.  It  passed  the  House,  July  22d,  by 
a  vote  of  117  to  2,  and  the  Senate,  July  26th,  by  a  vote 
of  30  to  5.*  August  6th,  Congress  adjourned,  having 
voted  all  that  the  Executive  had  asked  for. 

When  it  reassembled  in  December  the  scattered  drops 
of  July  had  settled  down  into  the  heavy  and  steady 
storm  of  war  which  was  to  beat  upon  the  country  for 
more  than  three  years  to  come.  From  the  first  day 
of  meeting,  it  was  evident  that  Congress  had  very 

1  See  Abolition,  III.  *  See  Habeas  Corpus. 

3  See  Reconstruction. 


378  The  Slavery  Controversy 

considerably  changed  its  views  as  to  the  proper  mode  of 
dealing  with  slavery.  In  both  Houses  a  large  number  of 
resolutions  were  immediately  introduced,  looking  toward 
emancipation,  and  with  them  began  the  course  of  legis- 
lation which  ended  in  the  general  abolition  of  slavery.1 

These  acts  were  then,  and  have  since  been,  denounced 
as  in  violation  of  the  good  faith  pledged  in  the  resolution 
of  July  22d,  above  mentioned.  That  resolution  un- 
doubtedly expressed  what  was  then  the  policy  and  inten- 
tion of  both  Congress  and  its  constituents,  when  the 
magnitude  of  the  war  was  not  yet  apparent,  and  its  inter- 
dependence upon  slavery  was  not  yet  plainly  perceived. 
But  a  congressional  resolution  is  certainly  not  a  part  of 
the  organic  law,  but  a  mere  piece  of  legislation  open  to 
change  or  repeal  at  any  moment.  Other  governments 
are  never  reproached  for  vitally  changing  their  policy  as 
a  war  in  which  they  are  engaged  grows  more  desperate. 
It  is  a  tribute,  though  sometimes  a  provoking  tribute,  to 
the  exceptional  good  faith  of  the  American  Republic, 
to  find  canons  of  good  faith  laid  down  for  it  which  would 
not  be  considered  applicable  elsewhere. 

Outside  of  anti-slavery  legislation,  and  the  appropria- 
tion bills,  the  most  important  action  of  the  session  was 
the  act  of  February  25,  1862,  authorizing  the  issue  of 
$150,000,000  non-interest-bearing  notes,  receivable  for 
all  dues  to  the  United  States,  except  duties  on  imports, 
and  for  alJ  claims  against  the  United  States,  except  in- 
terest on  the  public  debt,  and  a  legal  tender  for  all  debts, 
public  and  private,  within  the  United  States,  with  the 
exceptions  above  noted,  which  were  to  be  paid  in  coin. 
The  legal-tender  clause  was  much  disliked  by  Secretary 
Chase,  who  only  finally  yielded  to  it  on  the  score  of  mili- 
tary necessity,  and  as  a  war  measure. 

This  development  of  anti-slavery  feeling  and  action  in 
the  dominant  party,  the  preliminary  proclamation  of  the 

1  See  Abolition,  III.  ;  Fugitive  Slave  Laws  ;  Wilmot  Proviso. 


The  Rebellion  379 

President  looking  toward  emancipation,1  and  the  sum- 
mary suppression  of  opposition  to  the  war  by  arrest,* 
produced  almost  a  complete  political  change  of  relations 
in  the  North.  Hitherto,  Democrats  in  and  out  of  Con- 
gress had  very  steadily  voted  for  all  measures  designed  to 
suppress  the  Rebellion  by  arms,  while  they  as  steadily 
accompanied  their  votes  with  the  declaration  that  the 
Republicans,  by  abolition  agitation,  had  been  as  much 
to  blame  for  the  war  as  the  secessionists.  They  now 
alleged  that  the.new  anti-slavery  policy  had  been  adopted 
mainly  for  the  purpose  of  forcing  their  party  into  an  atti- 
tude of  opposition  to  the  war  itself.  If  there  was  any 
truth  in  the  charge,  the  manoeuvre  was  successful:  the 
Democratic  party  gradually  became  a  peace  party,3  and 
those  of  its  members  who  were  willing  to  include  slavery 
as  one  of  the  vulnerable  points  of  the  Confederacy  were 
forced  into  the  "Union  party,"  as  the  Republican  party 
was  henceforth  frequently  termed. 

The  first  results  of  this  bouleversement  were  unfavor- 
able. In  the  autumn  elections  of  1862  the  great  Middle 
and  Western  States,  New  York,  New  Jersey,  Pennsyl- 
vania, Ohio,  Indiana,  Illinois,  and  Wisconsin,  all  of 
which  had  voted  for  Lincoln  in  1860,  gave  Democratic 
majorities.  But,  as  it  happened,  the  Democrats  gained 
and  the  Republicans  lost  little  by  these  elections :  in  only 
two  of  these  States,  New  York  and  New  Jersey,  the  elec- 
tion involved  a  change  of  State  government ;  and  in  the 
members  of  the  House  of  Representatives  of  1863-5, 
chosen  this  year,  the  Republican  majority  was  hardly  im- 
paired. The  results  were  just  sufficient  to  confirm  the 
Democrats  in  opposition  to  the  war,  and  the  Republicans 
in  active  opposition  to  slavery,  while  it  should  have  been 
evident  that,  as  the  two  ideas  became  familiar  in  the 

1  See  Emancipation  Proclamation. 

8  See  Arbitrary  Arrests,  under  Habeas  Corpus. 

3  See  Democratic  Party,  VI. 


380  The  Slavery  Controversy 

future,  the  tide  of  recruits  must  run  steadily  from  the 
Democrats  to  the  Republicans,  and  no  longer  from 
the  Republicans  to  the  Democrats.  The  Democratic 
party  touched  high-water  mark  in  1862-3;  thereafter  it 
could  only  recede. 

The  session  of  Congress  which  began  in  December, 

1862,  was  used  by  the  Republicans  mainly  in  securing  the 
positions  which  they  had  already  gained,  and  in  making 
the  necessary  appropriations  for  the  war.     No  great  ad- 
vance was  made  in  anti-slavery  legislation,  except  that 
the  final  Thirteenth  Amendment  was  introduced  and  left 
to  become  familiar.     The  fundamental  idea  of  final  re- 
construction by  Congress  was  also  plainly  put  into  form, 
and  left  to  become  familiar.1     In  practical  legislation  the 
great  features  of  the  session  were  the  Conscription  Act,* 
by  which  the  national  power  to  compel  the  military  ser- 
vice of  its  citizens  was  for  the  first  time  declared  and 
maintained;  and  the  National  Bank  Act  of  February  25, 

1863.  West  Virginia  was  admitted  (see  that  State);  and 
the  suspension  of  the  writ  of  liabeas  corpus  was  confirmed 
and  regulated.3     The  appropriation  for  the  navy  this  year 
footed  up  $71,041,401.01;  and  for  the  army  $729,861,- 
898.80,  with  $108,807,645.20  for  deficiencies. 

The  wonderful  tenacity  with  which  the  majority  in 
Congress  held  its  ground  during  this  last  session,  taking 
no  step  backward  on  the  slavery  question,  and  actually 
advancing  in  other  respects,  in  the  face  of  the  adverse 
majorities  of  1862,  was  fully  justified  by  the  event. 
Every  day  increased  the  number  of  Democrats  to  whom 
the  idea  of  emancipation  as  an  incident  of  the  war  be- 
came less  dreadful  as  it  became  more  familiar.  July  4, 
1863,  seems  to  have  been  the  political  as  well  as  the  mili- 
tary turning-point  of  the  war.  From  that  day  it  was 
certain  that  the  Confederate  armies  in  the  East  were  to 
be  so  held  in  play  as  to  be  unable  to  defend  successfully 

1  See  Reconstruction.  *  See  Drafts.  3  See  Habeas  Corpus. 


The  Rebellion  381 

their  vital  point  in  the  West.  Nothing  succeeds  like  suc- 
cess ;  and  every  mile  of  advance  by  the  Western  armies 
was  a  new  guarantee  to  the  Republicans  of  security  for 
the  past  and  for  the  future.  Everything  had  been  gained 
and  nothing  lost,  and  it  was  only  necessary  now  to  pass 
at  leisure  the  crowning  amendment  for  general  emancipa- 
tion, and  to  wait  patiently  while  the  armed  forces  worked 
out  the  already  secured  political  future.  The  autumn 
elections  of  1863  were  not  generally  for  important  offices; 
but  they  indicated  a  strong  Republican  gain  for  the  first 
time  since  1860;  and  in  the  States  of  Ohio  and  Pennsyl- 
vania, where  the  control  of  the  State  government  was 
involved  in  the  election,  the  Republican  majority  was 
decisive. 

A  new  Congress  met  in  December,  1863,  the  Repub- 
lican majority  being  36  to  14  in  the  Senate,  and  102  to 
84  in  the  House.  Its  action  was  mainly  confined  to  the 
routine  business  necessary  for  prosecuting  the  war,  and 
to  the  amendment  and  enforcement  of  previous  legis- 
lation. Provision  was  also  made  for  the  admission  of 
Nevada,  Colorado,  and  Nebraska  as  States,  and  for  the 
repeal  of  the  fugitive  slave  laws  (see  that  title).  A  first 
attempt  was  made  to  pass  the  Thirteenth  Amendment ; 
the  portentous  question  of  reconstruction  was  fairly  intro- 
duced ;  and  the  existence  of  the  new  class  of  professional 
soldiers  was  recognized  by  the  revival  of  the  grade  of 
lieutenant-general  commanding  all  the  armies.  This  last 
grade  was  intended  to  be  filled  by  General  Grant. 

With  the  adjournment  of  this  session  of  Congress,  the 
political  history  of  the  Rebellion  practically  ends.  Little 
was  to  be  done  by  the  dominant  party,  beyond  gathering 
up  the  fruits  of  victory,  and  drawing  breath  for  the  com- 
ing struggle  of  reconstruction.  Lincoln's  re-election,  in 
the  autumn  of  1864,  hardly  doubtful  in  the  event  of  any 
action  by  the  opposition,  was  made  certain  by  the  Demo- 
cratic peace  platform  of  that  year.  This  was  followed 


382  The  Slavery  Controversy 

by  the  final  adoption  of  the  Thirteenth  Amendment, 
abolishing  slavery,  the  only  work  of  the  session  of  1864-5 
which  rises  above  routine.  During  the  year,  it  was  rati- 
fied by  the  States. 

Throughout  the  political  work  of  Congress  in  these 
eventful  four  years,  its  main  characteristics  are  its  general 
reflection  of  the  will  of  its  constituency,  its  openness,  and 
its  determined  resolution  to  retain  the  supremacy  of  Con- 
gress over  the  generals  and  armies  in  the  field.  In  the 
last  two  points  it  differed  absolutely  from  its  rival,  the 
Confederate  congress.1  At  the  opening  of  the  war,  while 
most  of  the  military  leaders  retained  the  habits  of  civil 
and  political  life,  these  characteristics  led  to  many  evils : 
annoying  interferences  and  conflicts  by  the  committees 
on  the  conduct  of  the  war,  with  various  military  leaders ; 
needless  assertions  of  power  and  dignity  by  the  dispu- 
tants; and  the  revelation  in  the  debates,  of  things  in 
which  not  only  military  science,  but  common-sense, 
should  have  dictated  secrecy.  But  these  evils  cured 
themselves.  As  the  new  class  of  generals  grew  up,  habit- 
uated to  regard  Congress  as  a  master,  not  as  a  would-be 
tyrant,  Congress  itself  learned  self-control  by  bitter  ex- 
perience; and  the  war  ended  with  entire  harmony  be- 
tween the  civil  and  military  agents  in  it. 

Nor  can  it  be  doubted  now  that  Congress  generally 
reflected  the  will  of  its  constituents.  The  single  plausible 
exception  is  the  winter  of  1862-3,  above  referred  to. 
But,  in  that  instance,  the  majority  in  Congress,  if  its 
members  chose  to  risk  their  political  existence  on  the 
supposition,  had  a  fair  right  to  presume,  I,  that  the  elec- 
tions of  1862  were  lost  through  their  own  lack  of  import- 
ance, and  the  consequent  neglect  of  many  Republicans  to 
take  part  in  them;  2,  that  the  coincident  choice  of  a  Re- 
publican majority  in  the  next  Congress  was  a  fair  popular 
indorsement  of  their  own  change  of  policy ;  and,  3,  that 

1  See  Confederate  States. 


The  Rebellion  383 

every  indication  showed  that  the  popular  tide  in  their 
favor  would  inevitably  be  strengthened  by  the  success  of 
the  Union  forces,  without  which  any  policy  would,  of 
course,  have  proved  a  failure.  The  result  proved  that  in 
all  three  suppositions  they  were  correct. 

TREASON. — Under  the  Confederation  there  was  no  such 
legal  offence  as  treason  against  the  United  States,  since 
there  was  no  such  thing  as  allegiance  to  the  United 
States.  Treason  and  allegiance  had  reference  only  to  the 
State.  A  remnant  of  this  feeling  made  the  definition  of 
treason,  when  it  was  first  introduced  into  the  convention 
of  1787,  August  6th,  consist  in  "levying  war  against 
the  United  States,  or  any  of  them,  and  in  adhering  to 
the  enemies  of  the  United  States,  or  any  of  them.'"  The 
clause  was  fully  debated,  August  2oth,  and  changed 
to  its  present  form.1  But  all  the  debaters  professed 
themselves  dissatisfied  with  it.  Gouverneur  Morris 
acutely  pointed  out  the  fact,  that  "in  case  of  a  contest 
between  the  United  States  and  a  particular  State,  the 
people  of  the  latter  must  be  traitors  to  one  or  the  other 
authority."  But  a  motion  to  give  Congress  the  "sole" 
power  to  define  the  punishment  of  treason  was  lost,  five 
States  voting  for  it  and  six  against  it.  Seldom  has  the 
omission  of  a  single  word  had  more  momentous  effects. 
In  this  case  it  left  to  Congress  and  the  States,  as  almost 
all  the  speakers  acknowledged,  a  concurrent  power  to 
punish  for  treason ;  and  so  it  enabled  a  seceding  State  to 
offer  to  its  minority  a  choice  between  treason  against  the 
State  and  treason  against  the  United  States.  Had  the 
vote  been  six  States  to  five  for  the  insertion  of  the  word, 
the  State  sovereignty  and  secession  arguments  would 
hardly  have  been  worth  the  trouble  of  refuting. 

Had  the  Constitution  given  ,to  Congress  the  "sole" 
power  to  define  the  punishment  of  treason,  the  States 
would  have  been  remitted,  for  protection  against  such 

1  See  Constitution,  Art.  III.,  §  3. 


384  The  Slavery  Controversy 

domestic  disturbances  as  Dorr's  Rebellion,  to  a  simple  law 
against  seditious  assemblages ;  and  the  protection  would 
have  been  efficient.  As  it  is,  most  of  the  States  have 
inserted  in  their  constitutions  a  provision  that  "treason 

against  the  State  of  shall  consist  only  in  levying 

war,  etc.,"  following  the  Constitution  of  the  United 
States.  These  provisions  have  always  been  practically 
in  nubibus :  there  has  hardly  been  a  case  of  indictment 
for  treason  against  a  State,  excepting  the  action  of  Rhode 
Island  in  the  Dorr  case,  and  that  came  to  nothing.  But 
they  fostered  the  idea  of  allegiance  to  a  State,  and  thus 
carried  into  secession  the  multitude  who  disliked  seces- 
sion, but  dreaded  to  commit  treason  against  the  State. 

At  the  end  of  the  Rebellion  there  were  no  prosecutions 
for  treason.  It  has  been  roundly  asserted  that  the  reason 
for  this  was  the  consciousness  of  the  Government  of  the 
United  States  that  it  had  been  illegally  suppressing  a 
misnamed  rebellion,  that  treason  could  only  hold  against 
a  State,  and  that  Jefferson  Davis  and  his  associates  had 
committed  no  crime  and  engaged  in  no  treason,  in  any 
sense  known  to  the  Constitution  or  its  framers.  Those 
who  so  argue  forget  that  Mr.  Davis,  at  least,  was  no 
prisoner  of  war;  that  his  surrender  was  unconditional  and 
in  a  territory  under  military  occupation ;  and  that,  if 
there  had  been  any  such  impotent  spite  against  him  as 
this  theory  assigns  to  the  Government,  a  drum-head 
court-martial  and  a  file  of  men  would  quickly  have  made 
it  patent,  treason  or  no  treason.  The  fact  seems  to  be 
that  his  escape  was  due  entirely  to  lack  of  spite.  The 
collapse  of  the  Rebellion  had  been  too  complete  to  allow 
of  spite.  The  nation  stood  aghast  as  it  realized  the 
thoroughness  of  its  work ;  and  its  controlling  impulse  was 
to  efface  as  rapidly  as  possible  all  evidences  of  the  con- 
flict. Treason  trials  would  have  been  a  festering  sore  in 
the  body  politic,  and  they  were  avoided. 

There  can  be  no  doubt  that  this  policy  was  just,  as  well 


The  Rebellion  385 

as  wise.  For  seventy  years  before  1860,  men  who  did 
not  realize  the  full  force  of  what  they  said  had  been 
boasting  of  the  "voluntary"  nature  of  the  Union,  in  con- 
trast with  the  effete  despotisms  of  Europe.  The  nation's 
long  laches  in  asserting  its  paramount  authority  in  the  last 
resort  gave  Jefferson  Davis  and  his  associates  an  exemp- 
tion from  the  animus  of  treason  which  can  never  be 
claimed  again.  All  men  have  now  had  fair  warning,  as 
Jefferson  Davis  had  not  in  1860,  that  the  Union  is  not 
"voluntary,"  so  long  as  the  nation  is  determined  to 
maintain  it;  and  that  any  attempt  to  break  it  up  is 
treason  to  the  United  States,  even  if  it  is  obedience  to  a 
State.  It  might  be  that  a  future  rebellion  would  be  sup- 
pressed with  a  similar  generous  forbearance  from  ultimate 
vengeance ;  but  the  chance  is  an  uncommonly  small  one. 
The  act  of  April  30,  1790,  made  death  the  penalty  for 
treason,  as  defined  in  the  Constitution,  on  conviction  by 
"confession  in  open  court,  or  on  the  testimony  of  two 
witnesses  to  the  same  overt  act."  It  also  made  fine  and 
imprisonment  the  punishment  of  misprision  of  treason, 
the  concealment  of  it.  For  seventy  years  this  act  was 
sufficient.  There  were  few  trials  under  it,  the  principal 
one  being  that  of  Burr;  and  these  were  practically  fail- 
ures. In  1 86 1  an  act  was  passed  making  conspiracy  to 
oppose  the  laws  or  seize  the  property  of  the  United 
States  a  high  crime,  but  this  was  punishable  only  by  fine 
and  imprisonment.  The  act  of  July  17,  1862,  provided 
that,  if  any  person  should  thereafter  commit  the  crime 
of  treason  against  the  United  States,  his  slaves,  if  any, 
should  be  declared  free,  and  he  himself  should  suffer 
death,  or  fine  and  imprisonment,  at  the  discretion  of  the 
court ;  that  any  one  convicted  should  forever  be  incapable 
of  holding  office  under  the  United  States;  and  that  it  „ 
should  be  the  duty  of  the  President  to  seize  and  apply 
to  the  use  of  the  army  the  property  of  six  classes  of  lead- 
ers of  the  Rebellion,  who  seem  to  have  been  considered 


VOL.  II.  —  25. 


386  The  Slavery  Controversy 

prima  facie  guilty  of  treason.  There  were,  finally,  no 
Southern  prosecutions  under  it.  Davis  and  others  were 
indicted,  but  never  brought  to  trial.  The  few  prosecu- 
tions were  in  Northern  States. 

On  the  Rebellion  for  the  special  lines  of  work  done  by 
the  Congresses  of  1861-5,  see  Abolition,  III. ;  Amnesty; 
Banking;  Construction;  Distilled  Spirits;  Drafts;  Elec- 
tors, III.;  Freedmen's  Bureau  ;  Fugitive  Slave  Laws; 
Habeas  Corpus ;  Internal  Improvements;  Internal  Reve- 
nue; Monroe  Doctrine;  Reconstruction,  I.;  Slavery; 
Wilmot  Proviso ;  and  the  authorities  cited  under  them. 
See  also  (General)  2,  3  Draper's  History  of  the  Civil  War  ; 
12-14  Stat.  at  Large  ;  Moore's  Rebellion  Record;  Guernsey 
and  Alden's  Pictorial  History  of  the  Rebellion;  Appleton's 
Annual  Cyclopcedia  (1861-5);  3  Wilson's  Rise  and  Fall 
of  the  Slave  Power  ;  2  Greeley's  American  Conflict ;  Vic- 
tor's History  of  the  Rebellion  ;  4  Bryant  and  Gay's  History 
of  the  United  States  ;  Botts's  Great  Rebellion  ;  Pollard's 
Lost  Cause;  (Political)  McPherson's  Political  History  of 
the  Rebellion;  Raymond's  Life  of  Lincoln ;  Giddings's 
History  of  the  Rebellion  (to  1863);  Wilson's  Anti-Slavery 
Measures  in  Congress ;  Kurd's  Theory  of  Our  National 
Existence  (index  under  States,  Status  of}\  Boutwell's 
Speeches  and  Reports  ;  H.  W.  Davis' s  Speeches  and  Ad- 
dresses ;  Hurlburt's  McClellan  and  the  Conduct  of  the 
War ;  2  A.  H.  Stephens 's  War  Between  the  States ; 
Harris's  Political  Conflict ;  Gillet's  Democracy  in  the 
United  States;  (Military)  Callan's  Military  Laws  of  the 
United  States  ;  Wilson's  Military  Measures  in  Congress  ; 
Count  of  Paris's  History  of  the  Civil  War ;  Gen.  U.  S. 
Grant's  Report  of  the  Armies  (1864-5);  Reports  of  the 
Committees  on  the  Conduct  of  the  War ;  W.  T.  Sherman's 
Memoirs;  Swinton's  Twelve  Decisive  Battles  of  the  War; 
Appleton's  Campaigns  of  the  Civil  War;  Ingersoll's  His- 
tory of  the  War  Department ;  Boynton's  History  of  the 


The  Rebellion  387 

Navy  During  the  Rebellion ;  Records  of  the  Rebellion  ; 
Confederate  Official  Reports  (1863);  (Financial)  Schuck- 
ers's  Life  of  Chase,  216,  293;  Von  Hock's  Die  Finanzen 
der  Ver-Staaten ;  Laws  of  the  United  States  Relating  to 
Loans  and  Currency  (to  1878) ;  Spaulding's  History  of  the 
Legal  Tender  Paper  Money  of  the  Rebellion;  Noyes's 
Thirty  Years  of  American  Finance  ;  Rhodes 's  History  of 
the  United  States  ;  Perry's  Elements  of  Political  Economy, 
459;  Gibbons '  s  Public  Debt ;  McPherson's  Index  of  House 
Bills  on  Banks,  Currency,  Public  Debt,  Tariff,  and  Direct 
Taxes  (1875);  Lamphere's  United  States  Government,  44; 
John  Sherman's  Select  Speeches  on  Finance ;  Nimmo's 
Ctistoms  Tariff  Legislation  ;  and,  in  general,  Bartlett's 
Literature  of  the  Rebellion  (6073  titles  of  books,  pam- 
phlets, and  magazine  articles  relating  to  the  Rebellion, 
directly  or  indirectly,  up  to  1866). 

On  Treason  see  Story's  Commentaries,  §§  1290,  1790; 
ib.,  §  1795  (for  law  cases) ;  Whiting's  War  Powers  (loth 
ed.),  95;  the  State  sovereignty  view  of  treason  is  in 
Bledsoe's  Is  Jefferson  Davis  a  Traitor?  and  Centz's  ' 
Republic  of  Republics,  413  foil,  (see  also  index  under 
Treason)-,  Indianapolis  Treason  Trials ;  The  Milligan 
Case ;  for  the  indictment  against  Davis  see  Schuckers's 
Life  of  Chase,  534;  the  act  of  April  30,  1790,  is  in  I  Stat. 
at  Large,  112;  the  act  of  July  17,  1862,  is  in  12  Stat.  at 
Large,  589. 

1  P.  C.  Centz  (Plain  Common  Sense)  was  a  pseudonym. 


CHAPTER   XIII 

POLITICAL  EVENTS  OF  THE  CIVIL  WAR 

LINCOLN  had  been  elected  upon  the  issue  of  restrict- 
ing the  area  of  slavery.  His  first  purpose  on  com- 
ing into  power  was  to  restrict  the  area  of  secession.  He 
wished  to  hold  to  the  support  of  the  Union  the  conserva- 
tive men  who  favored  the  Union  with  slavery,  and  who 
believed  that  an  attempt  at  forcible  coercion,  an  attempt 
to  pin  the  Union  together  by  the  bayonet,  was  not  only 
useless  but  pernicious.  Many  of  these  men  were  in  the 
border  States  and  Lincoln's  attitude  toward  those  States, 
— his  desire  to  save  them  for  the  Union — will  serve  to 
explain  his  conservative  policy  toward  slavery  for  the 
first  year  of  his  Administration.  This  conservative  policy 
is  indicated  by  the  spirit  of  his  inaugural  address,  by  his 
attitude  toward  Butler's  contraband  order,  toward  the 
confiscation  acts,  the  military  emancipation  of  Fremont 
and  Hunter,  and,  generally,  toward  the  radical  anti- 
slavery  members  of  the  Republican  party  as  they  urged 
him  to  a  more  positive  anti-slavery  policy.  The  political 
history  of  the  war  can  best  be  studied  by  noticing  the 
successive  steps  and  influences  by  which  the  Adminis- 
tration turned  from  mere  Union-saving  purposes  in  the 
conduct  of  the  war  to  promoting  also  the  cause  of  emanci- 
pation. This  study  will  suggest  also  the  measures  and 
principles  on  which  the  Democratic  opposition  arraigned 
and  opposed  the  Administration.  The  most  of  these 
topics  are  discussed  in  the  articles  that  follow.  In  addi- 

388 


Political  Events  of  the  Civil  War     389 


tion  to  the  suggestions  of  these  articles  the  student  would 
do  well  to  notice  the  correspondence  between  Mr.  Lin- 
coln and  Mr.  Greeley  on  the  policy  of  the  war  toward 
slavery  * ;  Lincoln's  policy  of  compensated  emancipation 
urged  on  the  border  States  in  the  spring  of  1862;  the 
correspondence  between  Mr.  Lincoln  and  the  Ohio  and 
New  York  Democrats  on  the  Vallandigham  case,  in  1863* ; 
and  that  between  Lincoln  and  Seymour  on  the  draft 
riots;  the  results  of  the  elections  of  1862,  and  the  party 
platforms  and  policies  of  1864.  The  articles  on  Rebel- 
lion, Emancipation,  and  the  accompanying  articles  and 
authorities  will  serve  sufficiently  as  a  basis  for  this  study. 

THE  EMANCIPATION  PROCLAMATION. —  The  war 
against  the  Rebellion  of  1861  was  for  nearly  eighteen 
months  confined  carefully  to  operations  against  the 
armed  forces  in  the  field,  not  against  slavery.3  During 
most  of  this  time  President  Lincoln  listened  apparently 
unmoved  to  importunate  demands  from  extreme  aboli- 
tionists in  all  parts  of  the  North  for  a  declaration  against 
slavery.  He  declared  that  his  paramount  object  was  the 
maintenance  of  the  Union;  that  if  he  could  save  the 
Union  without  freeing  any  slave,  he  would  do  it ;  that  if 
he  could  save  it  by  freeing  all  the  slaves,  he  would  do  it ; 
and  that  if  he  could  save  it  by  freeing  some  and  leaving 
others  alone,  he  would  do  that.  It  was  not  until  the 
summer  of  1862  that  he  finally  decided  that  the  time  had 
come  for  striking  at  slavery.  September  22,  1862,  with- 
out any  previous  general  intimation  of  his  purpose,  he 
issued  a  preliminary  proclamation,  warning  the  inhabi- 
tants of  the~  revolted  States  that,  unless  they  should  re- 
turn to  their  allegiance  before  the  first  day  of  January 
following,  he  would  declare  their  slaves  free  men  and 

1  Greeley 's  Prayer  of  Twenty  Millions,  August  20,  1862. 
9  See  McPherson's  History  of  the  Rebellion,  pp.  163-175. 
•See  Abolition,  III.;  Rebellion. 


39°  The  Slavery  Controversy 

maintain  their  freedom  by  means  of  the  armed  forces  of 
tFe  United  States. 

This  proclamation  had  no  effect,  and  indeed  was  hardly 
expected  to  have  any  effect,  in  bringing  back  individuals 
or  States  to  the  control  of  the  Federal  Government.  A 
retaliatory  proclamation  was  issued  by  President  Davis, 
December  23,  1862,  ordering  the  hanging  of  General 
Benjamin  F.  Butler,  if  captured,  and  the  transfer  of 
captured  negro  Federal  soldiers  and  their  white  officers 
to  the  authorities  of  the  States  for  punishment. 

The  Emancipation  Proclamation  proper  was  issued 
January  i,  1863.  It  recited  the  substance  of  the  prelim- 
inary proclamation,  in  which  President  Lincoln  had  pro- 
mised to  "designate  the  States  and  parts  of  States,  if 
any,  in  which  the  people  thereof  should  be  in  rebellion 
against  the  United  States,"  and  in  which  alone  emanci- 
pation was  to  take  effect;  they  included  all  the  States 
which  had  seceded,1  with  the  exception  of  the  forty-eight 
counties  of  Virginia  now  known  as  West  Virginia,  seven 
other  counties  of  Virginia  (including  the  cities  of  Norfolk 
and  Portsmouth),  and  thirteen  parishes  of  Louisiana  (in- 
cluding the  city  of  New  Orleans).  The  excepted  parts 
were,  "for  the  present,  left  precisely  as  if  this  proclama- 
tion were  not  issued"  ;  as  to  the  district  still  in  rebellion, 
the  proclamation  ordered  and  declared  "that  all  persons 
held  as  slaves  within  said  designated  States  and  parts  of 
States  are  and  henceforward  shall  be  free ;  and  that  the 
Executive  Government  of  the  United  States,  including 
the  military  and  naval  authorities  thereof,  will  recognize 
and  maintain  the  freedom  of  said  persons."  It  enjoined 
upon  the  freedmen  the  duty  of  abstaining  from  all  vio- 
lence, except  in  self-defence,  and  declared  that  those  of 
their  number  who  were  of  suitable  condition  would  be 
received  into  the  military  and  naval  service  of  the  United 
States.  It  concluded  as  follows:  "and  upon  this  act, 

1  See  Secession. 


Political  Events  of  the  Civil  War      39 1 

sincerely  believed  to  be  an  act  of  justice,  warranted  by 
the  Constitution  upon  military  necessity,  I  invoke  the 
considerate  judgment  of  mankind,  and  the  gracious  favor 
of  Almighty  God." 

The  validity  of  such  a  proclamation  is  hardly  to  be 
seriously  questioned,  and  never  would  have  been  ques- 
tioned but  for  the  natural  revulsion  from  so  searching  an 
application  of  the  laws  of  war  in  a  country  which  had 
hitherto  enjoyed  an  almost  entire  exemption  from  actual 
warfare.  Its  authority  is  well  expressed  in  its  preamble ; 
it  was  issued  by  Abraham  Lincoln,  President  of  the 
United  States ;  not  by  virtue  of  any  powers  directly  en- 
trusted by  the  Constitution  to  the  presidential  office,  but 
"by  virtue  of  the  power  in  him  vested  as  commander- 
in-chief  of  the  army  and  navy  of  the  United  States  in 
time  of  actual  armed  rebellion  against  the  authority  and 
government  of  the  United  States,  and  as  a  fit  and  neces- 
sary war  measure  for  suppressing  said  rebellion." 

It  must  be  remembered  that  the  powers  of  the  Presi- 
dent as  commander-in-chief,  subject  to  the  laws  of  war  as 
recognized  by  all  civilized  nations,  are  distinctly  recog- 
nized by  the  Constitution ;  that  these  powers  are  brought 
to  life  and  action  by  the  existence  of  defensive  war  or  by 
the  exercise  by  Congress  of  its  power  to  declare  war,  and 
are  controlled  by  Congress  through  its  action  in  furnish- 
ing or  refusing  troops  and  supplies  to  the  commander-in- 
chief ;  and  that  the  Emancipation  Proclamation  and  other 
war  measures  are  therefore  as  much  the  work  of  the 
representatives  of  the  people  in  Congress  assembled 
as  of  their  executive  officer,  the  commander-in-chief.1 
Among  the  powers  of  a  commander-in-chief,  when  gov- 
erning conquered  soil  under  military  occupation,  is  that 
of  freeing  the  slaves  of  the  inhabitants.  It  may  even  be 
exercised,  subject  to  the  approval  of  the  commander-in- 
chief,  by  subordinate  commanders.11  So  long,  then,  as 

1  See  War  Powers.  2  See  Abolition,  III. 


39 2  The  Slavery  Controversy 

the  Constitution  vests  the  President  in  time  of  war  with 
the  powers  of  a  "commander-in-chief,"  and  permits  Con- 
gress to  call  those  powers  into  life  and  activity  by  declar- 
ing war,  it  is  hardly  necessary  to  defend  the  validity  of 
the  Emancipation  Proclamation. 

The  effect  of  the  proclamation,  however,  in  the  abso- 
lute abolition  of  slavery,  is  a  different  and  more  doubtful 
question;  it  has  been  warmly  asserted  that  it  had  no 
effect  whatever,  and  theoretically  the  case  against  it  is 
very  strong.  The  singular  feature  of  the  proclamation 
is  that  it  purports  to  free  the  slaves,  not  of  the  soil 
which  was  then  under  military  occupation,  but  of  that 
which  was  not  under  occupation,  and  which,  therefore, 
did  not  come  under  the  jurisdiction  of  the  President 
as  commander-in-chief.  Those  portions  of  Virginia  and 
Louisiana  which  had  been  conquered  by  the  forces  of 
the  United  States,  and  were  under  military  occupation 
at  the  time,  were  expressly  excepted  from  the  operation 
of  the  proclamation ;  and  in  the  States  designated  for  the 
operation  of  the  proclamation  Mr.  Lincoln  had  no  con- 
stitutional power  as  President,  and  no  physical  power  as 
commander-in-chief,  to  free  a  single  slave.  It  seems  to 
be  apparent,  then,  that  the  proclamation  had,  eo  instante, 
no  effect  whatever,  if  we  follow  its  own  terms,  and  that 
the  slaves  in  the  designated  States  and  parts  of  States 
were  no  more  free  January  2,  1863,  than  December  31, 
1862. 

The  objection,  however,  may  be  obviated  if  we  consider 
the  proclamation  as  one  whose  accomplishment  was  to  be 
effected  progressively,  not  instantaneously,  taking  effect 
in  future  as  rapidly  as  the  Federal  lines  advanced.  It 
would  then  be,  as  its  author  doubtless  designed  it  to  be, 
a  general  rule  of  conduct  for  the  guidance  of  subordinate 
officers  in  the  armed  forces  of  the  United  States,  a  con- 
ciliation of  a  large  portion  of  the  inhabitants  of  the  hostile 
territory  by  interesting  them  in  the  success  of  the  Federal 


Political  Events  of  the  Civil  War     393 

arms,  and  an  announcement  to  the  world  that,  without 
further  formal  notice,  each  fresh  conquest  by  the  Federal 
armies  would  at  once  become  free  soil. 

The  question  whether  slavery  was  abolished  by  the 
proclamation  or  by  the  Thirteenth  Amendment  has  never 
been  directly  before  the  Supreme  Court  for  decision,  but 
instructive  reference  to  it  will  be  found  in  the  cases  in 
Wallace's  Reports  cited  below.  The  only  cases  which 
hold  that  slavery  was  abolished  by  the  proclamation, 
and  instantly,  are  those  in  Louisiana  and  Alabama  cited 
below.1 

The  political  results  of  the  proclamation  are  almost  be- 
yond calculation,  and  can  only  be  summed  up  briefly. 

1.  Foreign  mediation  by  armed  force,  which  had  been 
an  important  possible  factor  while  the  struggle  was  merely 
one  between  a  Federal  union  and  its  rebellious  members, 
passed  out  of  sight  forever  as  soon  as  ultimate  national 
success  was  authoritatively  defined  as  necessarily  involv- 
ing the  destruction  of  slavery ;  from  that  time  any  effort 
by  the  governments  of  France  and  Great  Britain  to  force 
the  Government  of  the  United  States  to  recognize  the 
Confederate   States   as  a   separate   slaveholding   nation 
would  have  excited  the  horror  and  active  opposition  of  a 
very  large  and  influential  portion  of  their  own  subjects. 

2.  In  the  North  it  alienated  all  the  weak  or  doubtful 
members  of  the  Republican  party,  and  made  it  a  com- 
pact, homogeneous  organization,  with  well  defined  ob- 
jects, and  with  sinews  toughened  to  meet  the  novel  and 
important  questions  which  followed  final  success.1     The 
defeats  of  the  Administration  in  the  State  elections  of 
1862-3  were  the  training-school  in  which  the  party  at- 
tained the  extraordinary  cohesiveness  which  carried  it 
unbroken  through  the  struggle  between  Congress  and 
President  Johnson. 

3.  In  the  South  the  fact  that  such  a  proclamation  was 

1  See  Abolition,  III.;  Slavery.  'See  Reconstruction. 


394  The  Slavery  Controversy 

possible,  without  exciting  any  greater  opposition  in  the 
North,  seems  to  have  revealed  to  many  thinking  men  the 
enormous  extent  of  the  political  blunder  of  secession. 
But  three  years  before,  John  Brown  had  been  hanged  by 
the  State  of  Virginia,  and  the  North  had  looked  on  with 
general  indifference  or  approbation ;  now,  the  promulga- 
tion of  this  proclamation  met  either  with  the  vehement 
approval  of  the  dominant  party  in  the  North,  or  with 
such  feeble  symptoms  of  opposition  as  the  resignations 
of  a  few  subordinate  army  officers,  or  the  falling  off  of  a 
small  percentage  in  the  Republican  vote.  From  this 
time  there  was  a  steady  increase  in  the  number  of  those 
in  the  South  who  fought  with  the  energy  of  despair,  in- 
stead of  the  high  self-confidence  with  which  they  had 
entered  the  conflict,  and  who  felt  that  the  leaders,  by 
prolonging  the  struggle,  were  only  fanning  to  a  hotter 
flame  that  most  powerful,  though  sluggish,  political  force, 
the  wrath  of  a  republic. 

HABEAS  CORPUS. — The  writ  of  habeas  corpus  is  grant- 
able  as  a  matter  of  right,  on  a  proper  foundation  being 
made  out  by  proof,  and  was  familiar  in  England  under 
common  law  from  very  early  times;  but  the  judges,  who 
were  dependent  on  the  King's  pleasure  for  their  tenure 
of  office,  evaded  giving  it  whenever  the  King's  pleasure 
was  involved.  The  personal  liberty  of  the  subject  was 
therefore  at  the  King's  mercy  whenever  the  words  "per 
speciale  mandatum  regis"  ("by  special  command  of  the 
King")  were  inserted  in  the  warrant.  After  a  long  strug- 
gle the  famous  habeas  corpus  act  of  31  Car.  II.,  c.  2,  was 
carried  through  Parliament  in  1679,  and  gave  a  sanction 
to  that  which  before  had  none,  by  imposing  heavy 
penalties  on  the  refusal  of  a  judge  to  grant,  or  of  any 
person  to  obey  promptly,  the  writ  of  habeas  corpus.  The 
bill  had  several  times  passed  the  House  of  Commons, 
but  failed  in  the  Upper  House;  and  its  final  passage  by 


Political  Events  of  the  Civil  War      395 

the  Lords  was  by  a  trick,  if  we  are  to  believe  Burnet's 
story. 

"  It  was  carried  by  an  odd  artifice  in  the  House  of  Lords. 
Lord  Grey  and  Lord  Norris  were  named  to  be  the  tellers. 
Lord  Norris  being  a  man  subject  to  vapors,  was  not  at  all 
times  attentive  to  what  he  was  doing;  so,  a  very  fat  lord 
coming  in,  Lord  Grey  counted  him  for  ten,  as  a  jest  at  first; 
but,  seeing  Lord  Norris  had  not  observed  it,  he  went  on  with 
his  misreckoning  of  ten.  So  it  was  reported  to  the  House,  and 
declared  that  they  who  were  for  the  bill  were  the  majority, 
though  it  indeed  went  on  the  other  side." 

This  act,  in  substance,  has  been  made  a  part  of  the  law 
of  every  State  in  the  Union,  and  the  Constitution  of  the 
United  States  has  provided  that  the  privilege  of  the  writ 
shall  not  be  suspended  unless  when,  in  cases  of  rebellion 
or  invasion,  the  public  safety  may  require  it.  It  has 
been  judicially  decided  that  the  right  to  suspend  the 
privilege  of  the  writ  rests  in  Congress,  but  that  Congress 
may  by  act  give  the  power  to  the  President.  Such  an 
act  bears  some  resemblance  to  the  decree  of  the  Roman 
senate,  in  civil  dissensions  or  dangerous  tumults,  that  the 
consuls  "should  take  care  that  the  republic  should  re- 
ceive no  harm"  (ut  consules  darent  operam  ne  quid  detri- 
menti  respublica  caperef). 

The  resemblance,  however,  must  not  be  carried  very 
far :  the  Roman  decree  gave  the  consuls  absolute  power 
over  the  life  of  any  citizen,  and  power  to  levy  and  sup- 
port armies ;  but  a  suspension  of  the  privilege  of  the  writ 
of  habeas  corpus  by  Congress  only  allows  the  Executive  to 
detain  in  custody  without  interference  by  civil  courts,  or 
to  try  by  military  law,  prisoners  who  are  taken  in  battle, 
or  are  residents  of  hostile  territory,  or  are  in  the  military 
or  naval  service,  or  are  within  the  actual  circle  of  armed 
conflict  where  courts  are  impotent ;  and  no  power  in  the 
United  States  can  lawfully  take  away  the  privilege  of  the 


396  The  Slavery  Controversy 

writ  from  private  citizens  in  territory  not  rebellious  or 
invaded,  and  where  the  Federal  courts  are  in  regular 
operation.1  Nevertheless,  the  suspension  of  the  writ  is 
in  so  far  a  suspension  of  the  personal  liberty  of  the 
citizen. 

In  such  an  extraordinary  emergency  as  that  of  April, 
1861,  when  Congress  is  not  in  session  to  pass  a  suspend- 
ing act,  the  President  may  suspend  the  privilege  of  the 
writ  within  the  theatre  of  actual  warfare,  by  virtue  of  his 
powers  as  commander-in-chief ;  if  he  chooses  to  risk  any 
more  general  suspension  he  must  trust  for  validation  of 
his  action  to  a  subsequent  act  of  Congress." 

The  writ  is  granted  by  State  courts  as  a  general  rule, 
and  by  Federal  courts  only  when  the  imprisonment  is 
under  color  of  Federal  authority,  or  when  some  Federal 
right  is  involved  in  the  case.  The  act  of  1789  gave 
Federal  courts  the  power  to  issue  the  writ  when  necessary 
for  the  exercise  of  their  respective  jurisdictions,  except 
that  prisoners  in  jail  under  sentence  or  execution  of  a 
State  court  could  only  be  brought  to  the  Federal  court 
under  habeas  corpus  as  witnesses. 

The  troubles  in  1831-2  3  caused  the  passage  of  another 
act  giving  the  power  to  Federal  courts  to  issue  the  writ 
where  a  prisoner  was  committed  by  a  State  court  for  an 
act  done  in  obedience  to  a  Federal  law  (such  as  a  tariff 
act).  In  1842  McLeod's  case  caused  the  passage  of  an  act 
which  gave  Federal  courts  the  power  to  issue  the  writ 
where  a  prisoner  was  committed  by  a  State  court  for  an 
act  done  in  obedience  to  a  foreign  state  or  sovereignty 
and  acknowledged  by  international  law.4 

In  1867,  in  order  to  carry  out  the  amendment  abolish- 
ing slavery,  an  act  was  passed  which  gave  Federal  courts 
the  power  to  issue  the  writ  where  a  person  was  restrained 
of  his  liberty  in  violation  of  the  Constitution  or  of  any 

1  See  "  Milligan  Case  "  below.  8  See  Nullification. 

*  See  Rebellion.  4  See  McLeod  Case. 


Political  Events  of  the  Civil  War      397 

law  or  treaty.  But  the  Supreme  Court  has  determined 
that  in  no  case  can  a  State  court  on  habeas  corpus  release 
a  prisoner  committed  by  a  Federal  court,  and  that  in  case 
of  such  a  writ  being  issued  the  officer  is  not  to  obey  it 
further  than  to  make  return  of  the  authority  by  which  he 
holds  the  prisoner.  Nevertheless,  such  writs  are  issued 
and  obeyed,  but  only  by  acquiescence  of  Federal  officers. 

In  the  United  States  the  privilege  of  the  writ  was 
never  suspended  before  1861  by  the  Federal  Government, 
though  State  governments,  as  in  the  case  of  the  Dorr 
Rebellion,  had  done  so,  and  Federal  officers,  as  in  the 
Burr  conspiracy,  and  in  Jackson's  case  at  New  Orleans, 
had  refused  to  obey  the  writ.  January  23,  1807,  the 
Senate,  moved  by  a  message  detailing  Burr's  progress, 
passed  a  bill  suspending  the  writ  for  three  months  in  case 
of  arrests  for  treason,  and  requested  the  speedy  concur- 
rence of  the  House.  January  26th,  the  House,  by  a  vote 
of  123  to  3,  decided  not  to  keep  the  bill  secret  as  the 
Senate  had  done,  and,  by  113  to  19,  voted  that  the  bill 
"be  rejected,"  a  contemptuous  and  unusual  mode  of 
procedure. 

Arbitrary  Arrests. — On  the  breaking  out  of  the  Rebel- 
lion President  Lincoln,  after  calling  out  seventy-five 
thousand  men  and  proclaiming  the  blockade,  authorized 
the  commanding  general,  April  27,  1861,  to  suspend  the 
writ  of  habeas  corpus  between  Philadelphia  and  Washing- 
ton, and,  May  roth,  extended  the  order  to  Florida. 
May  25th,  on  the  application  of  John  Merryman,  Chief 
Justice  Taney  issued  a  writ  of  habeas  corpus  to  Gen.  Geo. 
Cadwallader,  and,  on  his  refusal  to  obey,  attempted  to 
have  him  arrested.  When  the  attempt  failed,  the  Chief 
Justice  transferred  the  whole  case  to  the  President.  July 
5th,  Attorney-General  Bates  gave  an  opinion  in  favor  of 
the  President's  power  to  declare  martial  law  and  then  to 
suspend  the  writ,  and  the  special  session  of  Congress,  to 
avoid  all  question,  subsequently  approved  and  validated 


398  The  Slavery  Controversy 

the  President's  acts  in  all  respects  as  if  they  had  been 
done  by  express  authority  of  Congress.  Thereafter 
"arbitrary  arrests"  proceeded  with  great  vigor  through- 
out the  North,  by  orders  from  the  State  Department 
alone  at  first,  and  then  concurrently  with  the  War  De- 
partment until  February  14,  1862,  when  the  latter  depart- 
ment, under  Secretary  E.  M.  Stanton,  assumed  the  entire 
power  of  arrest.  From  July  to  October,  1861,  175  per- 
sons were  summarily  imprisoned  in  Fort  Lafayette  alone, 
and  the  arrests  were  kept  up  through  1861  and  1862,  in- 
cluding State  judges,  mayors  of  cities,  members  of  the 
Maryland  Legislature,  persons  engaged  in  "peace  meet- 
ings," editors  of  newspapers,  and  persons  accused  of 
being  spies  or  deserters,  or  of  resistance  to  the  draft. 
September  24,  1862,  the  suspension  was  made  general 
by  the  President  so  far  as  it  might  affect  persons  arrested 
by  military  authority  for  disloyal  practices.  These  sum- 
mary arrests  provoked  much  opposition  throughout  the 
North,  and  influenced  the  State  elections  of  1862  very 
materially;  and  an  order  of  the  War  Department,  No- 
vember 22,  1862,  released  all  prisoners  not  taken  in  arms 
or  arrested  for  resisting  the  draft. 

As  yet  the  suspension  had  been  only  by  executive 
authority,  and  the  writs  which  were  still  persistently 
issued  by  State  courts  were  founded  on  a  long  line  of 
express  decisions  that  the  power  to  suspend  the  privilege 
of  the  writ  lay  in  Congress,  not  in  the  President.  By 
act  approved  March  3,  1863,  Congress  authorized  the 
President  whenever,  in  his  judgment,  the  public  safety 
might  require  it,  to  suspend  the  writ  anywhere  through- 
out the  United  States ;  but  the  power  to  issue  the  writ 
was  reserved  to  Federal  judges  wherever — the  Federal 
Grand  Jury  being  in  undisturbed  exercise  of  its  functions 
— a  prisoner  was  detained  without  indictment  at  the 
Grand  Jury's  next  session.  The  arrest,  May  4,  1863,  of 
C.  L.  Vallandigham,  ex-member  of  Congress  from  Ohio, 


Political  Events  of  the  Civil  War     399 

his  conviction  and  banishment  to  the  rebel  lines,  and  the 
arrest  of  other  persons,  renewed  the  excitement  in  the 
North. 

September  15,  1863,  the  President  by  proclamation  sus- 
pended the  writ  throughout  the  United  States  in  the  cases 
of  prisoners  of  war,  deserters,  those  resisting  the  draft, 
and  any  persons  accused  of  offences  against  the  military 
or  naval  service.  The  arrests  were  thereafter  continued 
with  little  interference  by  any  authority  until  August, 
1864,  when  the  arrest  of  a  Congressman  was  made  in  Mis- 
souri. The  House  of  Representatives  then  ordered  an 
investigation,  which  exposed  and  helped  to  remedy  many 
of  the  abuses  which  were  inevitable,  perhaps,  under  a 
suspension  of  the  writ.  Its  military  committee  found  in 
the  Old  Capitol  prison  officers  of  rank,  some  of  them 
wounded  in  service,  who  had  been  in  close  confinement 
for  months  without  charges  and  without  the  trial  which 
the  act  of  Congress  of  March  3,  1863,  had  ordered  to  be 
secured  to  the  accused.  The  exposure  was  sufficient  to 
prevent  a  recurrence  of  the  evil  for  the  future,  but  could 
do  nothing  for  the  past. 

October  21,  1864,  a  general  court-martial  was  held  in 
Indiana  and  passed  sentence  of  death  upon  several  citi- 
zens of  the  State  for  treasonable  designs;  and  the  case 
became  known  as  the  "Milligan  Case,"  from  the  name 
of  the  principal  prisoner,  Lampdin  P.  Milligan.  The 
Federal  Circuit  Court  in  Indianapolis  granted  a  writ  of 
habeas  corpus  for  them  May  10,  1865;  was  divided  in 
opinion  as  to  releasing  them ;  and  certified  the  whole  case 
to  the  Supreme  Court.  Its  decision,  given  in  the  De- 
cember term  of  1866,  overthrew  the  whole  doctrine  of 
military  arrest  and  trial  of  private  citizens  in  peaceful 
States.  It  held  that  Congress  could  not  give  power  to 
military  commissions  to  try,  convict,  or  sentence  in  a 
State  not  invaded  or  engaged  in  rebellion  and  where 
Federal  courts  were  unobstructed,  a  citizen  who  was  not 


400  The  Slavery  Controversy 

a  resident  of  a  rebellious  State,  nor  a  prisoner  of  war, 
nor  in  the  military  or  naval  service ;  that  such  a  citizen 
was  exempt  from  the  laws  of  war,  and  could  only  be 
subject  to  indictment  and  trial  by  jury;  that  the  suspen- 
sion of  the  privilege  of  the  writ  of  habeas  corpus  did  not 
suspend  the  writ  itself;  that  the  writ  was  to  issue  as 
usual,  and  on  its  return  the  court  was  to  decide  whether 
the  applicant  was  in  the  military  service,  or  a  prisoner 
of  war,  and  thus  debarred  from  the  privilege  of  the  writ ; 
and  that,  in  short,  neither  the  President,  nor  Congress, 
nor  the  Judiciary  could  lawfully  disturb  any  one  of  the 
safeguards  of  civil  liberty  in  the  Constitution,  except  so 
far  as  the  right  is  given  in  certain  cases  to  suspend  the 
privilege  of  the  writ  of  habeas  corpus.  All  the  justices 
agreed  that  Milligan  was  not  lawfully  detained,  and 
should  be  discharged.  Four  of  them,  Chief  Justice 
Chase  being  spokesman,  dissented  so  far  as  to  hold  that 
Congress  might  have  provided  for  trial  by  military  com- 
mission in  cases  like  that  of  Milligan,  without  violating 
the  Constitution,  but  had  not  done  so. 

December  i,  1865,  President  Johnson,  by  proclamation, 
restored  the  privilege  of  the  writ,  except  in  the  late  in- 
surrectionary States,  and  in  the  District  of  Columbia, 
New  Mexico,  and  Arizona.  April  2,  1866,  a  proclamation 
restored  the  writ  everywhere,  except  in  Texas;  and  an- 
other proclamation,  August  20,  1866,  restored  it  in  Texas 
also. 

The  records  of  the  provost  marshal's  office  in  Wash- 
ington show  thirty-eight  thousand  military  prisoners  re- 
ported there  during  the  Rebellion.  Among  these  there 
were  undoubtedly  many  cases  of  extreme  hardship,  the 
relief  of  which  was  always  grateful  to  President  Lincoln, 
when  his  attention  could  be  directed  to  them.  But 
under  cover  of  the  necessity  of  guarding  against  extensive 
conspiracies  in  the  North,  political  and  private  hatreds 
were  frequently  gratified  by  irresponsible  subordinates 


Political  Events  of  the  Civil  War      401 

in  a  shocking  manner,  and  the  trial  provision  of  the  act 
of  March  3,  1863,  was  too  often  disobeyed;  and  it  is  to 
be  feared  that  the  number  of  cases  of  this  kind  which 
could  never  be  brought  to  the  President's  notice  was 
very  considerable.  Nevertheless,  the  suspension  of  the 
privilege  of  the  writ,  in  the  border  States  at  least,  seems 
to  have  been  unavoidable;  and  the  consequent  abuses 
were  but  the  effects  of  the  wild  and  blind  blows  struck 
at  internal  treason  by  a  republic  unused  to  war.1 

In  the  Confederate  States  the  suspension  of  the  writ 
by  the  Federal  Government  was  made  the  theme  of  severe 
criticism;  but  when  it  was  found  that  in  a  single  year 
eighteen  hundred  cases  had  been  tried  in  Richmond 
alone,  based  on  writs  of  habeas  corpus  for  relief  from 
conscription,  the  Confederate  Congress,  late  in  1863,  sus- 
pended the  writ  until  ninety  days  after  the  meeting  of 
the  next  session.  At  the  next  session  the  suspension 
was  made  permanent,  May  20,  1864. 

After  the  close  of  the  Rebellion  the  Ku-Klux  dif- 
ficulties in  the  South  caused  the  passage  of  the  act  of 
April  20,  1871,  whose  fourth  section  authorized  the  Presi- 
dent, when  unlawful  combinations  in  any  State  should 
assume  the  character  of  rebellion,  to  suspend  the  writ  of 
habeas  corpus  in  the  disturbed  district;  but  the  trial  pro- 
vision of  the  act  of  March  3,  1863,  was  retained,  and  the 
whole  section  was  to  remain  in  force  no  longer  than  the 
end  of  the  following  session.  May  17,  1872,  a  bill  to 
continue  this  section  for  another  session  was  passed  by 
the  Senate  by  a  vote  of  28  to  15.  In  the  House,  May 
28th,  a  motion  to  suspend  the  rules  and  pass  the  bill  was 
lost,  94  to  108.  The  bill  was  then  dropped  and  has  not 
since  been  revived.2 

DRAFTS.    /.  The  Draft  of  1814,—  The  letters  of  Wash- 
ington during  the  Revolution  contain  abundant  evidence 
1  See,  in  general,  Executive,  Rebellion.  s  See  also  Reconstruction. 

VOL.  II. 36. 


402  The  Slavery  Controversy 

of  the  evils  of  a  reliance  in  war  upon  the  militia,  which 
force  he  characterized  in  general  December  5,  1776,  as 
"a  destructive,  expensive,  and  disorderly  mob." 

Under  the  Confederation  nothing  could  be  done  to  im- 
prove the  discipline  of  the  militia,  but,  by  the  Constitu- 
tion, power  to  organize,  arm,  and  discipline  it  was  given 
to  Congress,  with  the  idea  of  thus  furnishing  a  substitute 
for  a  standing  army.  Knox,  the  Secretary  of  War,  who 
either  had  or  drew  from  Hamilton  very  radical  ideas  on 
the  subject,  submitted  to  Congress,  in  January,  1790,  a 
plan  for  the  classification  of  the  militia  into  an  "advanced 
corps"  (eighteen  to  twenty  years  of  age),  a  "main  corps" 
(twenty-one  to  forty-five  years  of  age),  and  a  "reserved 
corps"  (forty-five  to  sixty  years  of  age).  Each  corps  was 
to  be  divided  into  sections  of  twelve  persons  each,  and  in 
case  of  necessity  for  an  army  one  person  was  to  be  taken 
by  lot  from  each  section  or  from  a  group  of  sections  of 
the  advanced  corps  or  of  the  main  corps. 

Nothing  was  done  with  Knox's  plan,  and  the  militia 
law  of  179$  simply  adopted  the  State  militia  systems 
without  any  idea  of  draft  or  of  compelling  military  ser- 
vice by  Federal  authority.  Knox's  idea,  however,  was 
not  forgotten,  and  after  1805  Jefferson  several  times  re- 
vived it  in  his  messages,  but  without  success.  It  was  as 
yet  evident  to  the  Democratic  (Republican)  leaders  in 
Congress  that  the  militia  was  a  State  institution,  and 
that,  when  it  should  be  called  into  the  Federal  service, 
the  power  to  select  the  regiments  or  organizations  to  fill 
the  State  quota  must  be  in  the  States  exclusively. 

When  war  was  declared  in  1812,  the  war  party,  acknow- 
ledging the  weakness  of  the  regular  army,  placed  a  large 
but  vague  reliance  upon  militia  as  a  reserve  force.  This 
confidence  was  from  the  first  found  to  be  baseless.  As 
soon  as  the  invasion  of  Canada  had  called  off  most  of  the 
regular  troops  from  the  seacoast,  requisitions  were  made 
upon  the  State  governors  for  militia  to  do  garrison  duty 


Political  Events  of  the  Civil  War      4°3 

in  their  stead.  The  call  was  at  once  refused  by  the  gov- 
ernors of  Connecticut  and  Massachusetts,  on  the  ground 
that  none  of  the  constitutional  contingencies  of  rebellion, 
invasion,  or  resistance  to  the  laws  had  occurred  so  as  to 
justify  the  summons  for  militia.  Even  when  invasion 
and  blockade  compelled  the  mustering  of  the  militia,  long 
wranglings  were  induced  by  the  articles  of  war,  which 
gave  regular  officers  precedence  over  those  of  the  militia, 
and  thus,  as  the  latter  complained,  took  away  the  right 
of  the  States  to  officer  their  own  troops.  In  1813  a  bill 
for  classifying  the  militia  passed  the  House,  but  was  lost 
in  the  Senate. 

The  excessive  demands  of  Great  Britain  as  the  price  of 
peace  in  the  next  year  revived  the  war  feeling  among  the 
people,  and  increased  the  necessity  for  an  increase  of 
the  army,  to  which  volunteering  was  incompetent.  The 
State  legislatures  of  New  York  and  Virginia  led  off  in 
proposing  to  the  Federal  Government  a  classification  and 
draft  from  the  militia. 

This  plan  was  recommended  by  the  President  in  his 
message  of  September  20,  1814,  and  a  bill  to  carry  it  into 
effect,  mainly  drawn  up  by  Monroe,  was  at  once  intro- 
duced into  Congress.  It  occasioned  great  alarm  and 
indignation  among  the  Federalists,1  and  even  among  the 
Democrats  was  generally  looked  upon  as  of  doubtful 
utility  and  more  than  doubtful  legality.  Nevertheless, 
it  passed  the  Senate  November  loth,  and  the  House 
December  gih ;  but  in  the  latter  body,  probably  with  a 
design  unfriendly  to  the  bill,  the  term  of  service  had  been 
reduced  from  three  years  to  one  year.  On  this  conven- 
ient issue  the  two  Houses  disagreed,  and  the  bill  was  lost. 
The  "Draft  of  1814,"  as  it  is  often  called,  was  therefore 
a  failure. 

//.  The  Draft  0/1863. — During  the  first  years  of  the 
Rebellion  the  armies  were  filled  by  volunteering,  with 

1  See  Convention,  Hartford. 


404  The  Slavery  Controversy 

the  exception  of  an  occasional  call  for  militia  for  short 
terms.  No  attempt  was  made  to  enforce  enlistments. 
When,  February  5,  1863,  the  debate  was  opened  upon 
the  Conscription  Bill,  its  whole  theory  and  defence  were 
based  upon  the  idea  of  enrolling  the  militia  by  Federal 
authority  and  drafting  individuals  therefrom  to  fill  up  the 
President's  calls  for  troops,  very  much  after  the  plan  of 
the  draft  of  1814. 

It  was  very  soon  found  impossible  to  meet  the  Demo- 
cratic objections  to  the  constitutionality  of  a  bill  for  this 
purpose,  and  Wilson,  of  Massachusetts,  on  the  i6th,  took 
the  new  ground,  upon  which  the  act  was  subsequently 
upheld  by  the  courts,  that  the  bill  was  based  upon  the 
power  "to  raise  armies"  ;  that  it  had  no  reference  what- 
ever to  the  State  militia;  but  that  it  called  every  able- 
bodied  citizen  of  military  age  into  the  Federal  service, 
and  selected  the  necessary  number  by  lot. 

By  the  terms  of  the  bill,  as  it  became  law  March  3, 
1863,  with  the  amendments  of  February  24,  1864,  and 
July  4,  1864,  the  enrolment  of  the  able-bodied  citizens 
between  eighteen  and  forty-five  was  to  begin  April  1st, 
under  the  direction  of  provost  marshals;  the  quotas  of 
congressional  districts,  under  future  calls  for  troops,  were 
to  be  filled  by  drafts  from  the  enrolled  citizens,  in  default 
of  volunteering;  substitutes  were  to  be  accepted;  a  com- 
mutation of  three  hundred  dollars  for  exemption  from  the 
draft  was  allowed;  and  all  persons  refusing  obedience 
were  to  be  punished  as  deserters. 

The  application  of  the  draft  principle  to  a  call  for 
300,000  troops  early  in  May  was  the  cause  of  intense 
excitement  in  Eastern  cities,  where  quotas  were  already 
in  arrears.  Charges  were  made,  and  to  a  considerable 
extent  proved,  that  subordinate  officials  had  so  arranged 
the  draft  as  to  bear  disproportionately  on  Democratic 
districts.  Thus,  from  nine  Democratic  districts  of  New 
York  State  (with  a  voting  population  of  151,243),  33,729 


Political  Events  of  the  Civil  War      405 

soldiers  were  to  be  drafted ;  while  from  nineteen  Repub- 
lican districts  (with  a  voting  population  of  457,257),  but 
39,626  were  to  be  drafted. 

These  manifest  discrepancies  were  promptly  corrected 
by  the  War  Department,  but  the  absence  of  the  State 
militia  in  Pennsylvania  enabled  the  mob  in  various  cities 
to  resist  the  draft,  with  considerable  temporary  success, 
as  an  oppressive,  illegal,  and  partisan  measure.  New 
York  City  was  completely  at  the  mercy  of  the  rioters  for 
four  days,  July  13-16,  but  in  other  cities  the  police  force 
was  strong  enough  to  enforce  the  law.  Wherever  the 
draft  had  been  stopped  by  violence,  it  was  afterward 
resumed  and  carried  into  full  effect. 

///.  Confederate  States'  Conscription. — Conscription  in 
the  Southern  States  preceded  and,  to  some  extent,  com- 
pelled the  adoption  of  conscription  by  the  Federal 
Government.  The  act  of  April  16,  1862,  with  the 
amendment  of  September  27,  1862,  was  rather  a  levy 
en  masse  than  a  conscription.  It  made  no  provision  for 
draft,  but  placed  all  white  men  between  the  ages  of 
eighteen  and  forty-five,  resident  in  the  Confederate 
States,  and  not  legally  exempt,  in  the  Confederate  service. 

July  18,  1863,  by  proclamation,  President  Davis  put 
the  conscription  law  into  operation,  and  directed  the  en- 
rolment to  begin  at  once.  February  17,  1864,  a  second 
conscription  law  was  passed.  It  added  to  the  former 
conscript  ages  those  between  seventeen  and  eighteen, 
and  between  forty-five  and  fifty,  who  were  to  do  duty 
as  a  garrison  and  reserve  corps.  It  excepted  certain 
classes,  such  as  one  editor  to  each  newspaper,  one  apothe- 
cary to  each  drug  store,  and  one  farmer  to  each  farm 
employing  fifteen  able-bodied  slaves,  and  provided  that 
all  persons  who  should  neglect  or  refuse  to  be  enrolled 
should  be  placed  in  the  field  service  for  the  war.  No 
substitutes  were  or  could  be  accepted,  for  every  person 
able  to  do  military  duty  was  himself  already  conscripted. 


The  Slavery  Controversy 

Very  little  resistance  was  made  to  this  sweeping  levy, 
for  the  Government  of  the  Confederate  States  showed 
little  mercy  to  opposition  of  any  kind.  Only  through 
the  conscription  were  the  Southern  armies  filled  for  the 
last  two  years  of  the  war,  and  its  enforcement  was  so 
rigorous  and  inquisitorial  that  toward  the  end  of  the 
war  the  Confederacy  generally  had  more  men  in  the  field 
than  it  could  provide  with  arms. 

IV.  Drafts  in  General. — The  liability  of  every  able- 
bodied  citizen  of  military  age  to  do  military  duty,  or  to 
render  its  equivalent,  has  been  imbedded  in  the  consti- 
tutions of  the  various  States,  the  reason  being  thus  clearly 
stated  in  the  New  York  constitution  of  1777:  "It  is  the 
duty  of  every  man  who  enjoys  the  protection  of  society 
to  be  prepared  and  willing  to  defend  it."  By  parity  of 
reasoning,  it  would  seem  impossible,  even  in  the  absence 
of  express  stipulation  on  the  subject,  to  deny  the  obliga- 
tion of  the  citizen  to  be  "prepared  and  willing  to  defend" 
the  Federal  Government,  the  national  society,  also,  whose 
protection  he  enjoys,  or  the  power  of  Congress,  if  neces- 
sary, to  make  military  service  compulsory. 

The  Constitution,  however,  has  not  left  the  matter  in 
doubt  or  to  construction ;  it  has  expressly  given  to  Con- 
gress the  power  to  "raise  armies,"  without  any  restriction 
or  limitation  as  to  the  manner  or  extent.  Until  1863, 
nevertheless,  the  power  to  draft,  with  which  the  power 
to  raise  armies  is  pregnant,  remained  in  abeyance,  and 
its  first  exercise  in  1863  marks  strongly  a  great  advance 
in  the  nationalization  of  the  Government.  In  1795  the 
military  reliance  of  the  country,  outside  of  the  regular 
army,  was  placed  exclusively  on  the  State  forces  of 
militia.  In  1798  the  authority  given  by  Congress  to  the 
President  to  accept  organizations  of  volunteers,  and 
commission  their  officers,  was  widely  censured  as  an  in- 
fringement upon  the  militia  rights  of  the  States.  In 
1814  public  opinion  had  advanced  so  far  as  to  consent  to 


Political  Events  of  the  Civil  War     407 

the  employment  of  volunteers  under  national  authority, 
but  insisted  that  armies  were  to  be  "raised"  only  by 
voluntary  enlistment,  and  resisted  a  draft  even  when 
disguised  as  an  enrolment  of  the  militia.  In  1863  the 
General  Government  claimed  and  exercised  the  right  to 
compel  service  ad  libitum  from  the  mass  of  its  citizens,  a 
power  which  Justice  Story  in  1833  did  not  suggest,  and 
probably  did  not  dream  of. 

And  yet,  when  this  power  was  first  exercised  in  1863-4, 
the  constitutional  arguments  against  it  were  surprisingly 
feeble.  They  were,  in  brief,  that  liability  to  compulsory 
military  service  was  due,  before  the  adoption  of  the  Con- 
stitution, to  the  States;  that  it  had  not  been  granted  to 
the  Federal  Government  by  the  Constitution  ;  and  that  it 
must,  therefore,  still  be  enforced,  if  at  all,  only  by  the 
States.  Further  arguments  were  drawn  ab  inconvenienti 
— from  its  possible  absorption  of  State  militia,  and  even 
of  State  civil  officers,  into  the  Federal  service — but  these 
we  may  pass  over.  On  the  other  hand,  the  courts  have 
steadily  held  that,  as  the  Constitution  has  given  to  Con- 
gress the  unlimited  power  to  "raise  armies,"  it  has  given 
therewith  unlimited  discretion  of  choice  of  the  method 
by  which  armies  shall  be  raised,  whether  by  volunteering 
or  by  draft. 

But,  however  sound  may  be  the  theory  of  conscription 
or  draft  in  the  United  States,  in  practice  it  has  always 
been  found  troublesome,  irritating,  and  very  barren  of 
results  compared  with  volunteering,  because  of  inevitable 
exemptions,  rejections,  and  desertions.  In  1863,  on  an 
enrolment  of  3,113,305  able-bodied  citizens  between 
eighteen  and  forty-five,  it  is  doubtful  if  100,000  con- 
scripts were  obtained  for  the  army,  The  usual  results 
of  the  draft  are  exemplified  in  one  of  Provost  Marshal 
General  Fry's  periodical  reports  in  1864:  Number  of 
drafted  men  examined,  14,741.  Number  exempted  for 
physical  disability,  4374;  number  exempted  for  all  other 


408  The  Slavery  Controversy 

causes,  2632;  number  paid  commutation  money,  5050; 
number  who  have  furnished  substitutes,  1416;  total, 
13,472.  Number  held  for  personal  service,  1269.  The 
results  in  substitutes  and  recruits  must  be  still  further 
diminished  by  the  ultimate  loss  from  desertion,  which  is 
not  estimated  here. 

All  the  hardships  of  the  system  came  with  most  crush- 
ing severity  upon  those  least  able  to  endure  or  to  avoid 
them.  But  it  must  not  be  understood  that  the  conscrip- 
tion law  was  therefore  useless;  on  the  contrary,  as  an 
assertion  of  the  enormous  reserve  power  of  the  Federal 
Government,  and  as  a  stimulus  to  the  energy  of  States 
and  individuals  in  encouraging  volunteering,  it  was  of  the 
very  greatest  value.  It  is  very  evident  that  if  the  United 
States  should  ever  again  be  compelled  to  maintain  large 
armies,  volunteering  will  still  be  the  rule,  and  the  draft 
power  will  only  be  held  in  terror  em  to  insure  the  prompt 
action  of  the  States  in  filling  their  quotas.1 

WEST  VIRGINIA,  a  State  of  the  American  Union.  Its 
organization  had  several  peculiarities.  Like  Vermont, 
Kentucky,  Maine,  Texas,  and  California,  it  had  no  pre- 
vious territorial  existence;  and,  like  Kentucky  and  Maine, 
it  was  formed  from  a  part  of  a  State  already  in  existence. 
But  in  the  cases  of  Kentucky  and  Maine  the  necessary 
consent  of  the  Legislature  of  the  parent  State  was  so 
regularly  given  that  no  exception  could  be  taken  to  it ; 
while  the  existence  of  West  Virginia  is  based  upon  a  legal 
fiction  by  which  Congress  recognized  a  revolutionary 
loyal  Legislature  in  Western  Virginia  as  the  legitimate 
Legislature  of  the  State  so  far  as  to  accept  the  consent  of 
the  former  body  to  the  erection  of  the  new  State  of  West 
Virginia. 

There  had  long  been  a  division  of  interests  and  feelings 
between  that  part  of  Virginia  west  of  the  Alleghanies 
1  See  Convention,  Hartford  ;  War  Power  ;  Confederate  States. 


Political  Events  of  the  Civil  War      409 

and  the  rest  of  the  State.  The  former  fraction,  com- 
prising nearly  one  half  the  territory  of  Virginia  and  about 
one  fifth  of  her  population  (355,526  whites  and  18,371 
slaves),  was  rather  a  Northern  than  a  Southern  State 
in  sympathy ;  its  representatives  in  the  Virginia  conven- 
tion opposed  secession;  and  their  constituents  supple- 
mented parliamentary  by  forcible  opposition. 

Early  in  May,  1861,  a  delegate  convention  at  Wheel- 
ing declared  the  ordinance  of  secession  null  and  void, 
and  summoned  a  (Virginia)  State  convention.  It  met  at 
Wheeling,  June  nth,  and  two  days  afterward  passed  an 
ordinance  vacating  the  State  offices  arrayed  against  the 
Federal  Government.  June  2oth,  it  elected  Frank  Pier- 
pont  Governor  of  Virginia.  July  2d,  the  Virginia  legis- 
lature, elected  under  the  convention's  ordinance,  met  at 
Wheeling,  and  elected  United  States  Senators,  who  were 
admitted  by  the  Senate.  August  2oth,  the  convention 
passed  an  ordinance  to  create  the  State  of  Kanawha,  and 
this  was  approved  by  popular  vote,  October  24th.  At 
the  same  election  delegates  were  chosen  to  a  new  conven- 
tion, which  framed  the  first  constitution,  now  adopting 
the  name  of  West  Virginia.  This  constitution  was  rati- 
fied by  popular  vote,  April  3,  1862,  and  in  the  following 
month  the  Legislature,  representing  the  forty  counties  of 
Western  Virginia,  but  claiming  to  represent  the  whole 
State,  formally  gave  Virginia's  consent  to  the  erection 
of  the  new  State.  December  31,  1862,  West  Virginia 
was  admitted  by  act  of  Congress,  the  admission  to  take 
effect  on  the  adoption  of  gradual  abolition  by  the  new 
State ' ;  and  the  State  thus  became  a  member  of  the 
Union,  June  19,  1863. 

The  whole  process  of  the  formation  of  the  State  is  a 
difficult  problem  in  American  constitutional  law.  It  was 
evidently  revolutionary  in  the  main ;  but  there  are  many 
features  in  it  which  go  to  support  Sumner's  "State 

1  See  Abolition,  III. 


410  The  Slavery  Controversy 

suicide"  theory.1  After  the  downfall  of  the  Rebellion 
Virginia  admitted  the  validity  of  the  formation  by  begin- 
ning suit  in  the  Supreme  Court  against  West  Virginia  for 
the  restoration  of  Berkeley  and  Jefferson  counties;  but 
the  suit  was  decided  against  Virginia  in  1871. 

Constitutions. — The  first  constitution  was  framed  by  a 
convention  at  Wheeling,  November  26,  i86i-Feb.  18, 
1862.  It  provided  that  the  State  should  "be  and  re- 
main "  one  of  the  United  States  of  America;  that  only 
white  male  citizens  should  vote;  that  the  Senate  should 
consist  of  eighteen  members,  chosen  for  two  years,  and 
the  House  of  Delegates  of  forty-seven  members,  chosen 
for  one  year;  that  the  membership  of  both  houses  should 
be  reapportioned  by  the  Legislature  after  each  census; 
that  the  capital  should  be  Wheeling  until  changed  by  the 
Legislature ;  that  the  governor  should  be  chosen  by  popu- 
lar vote  for  two  years;  that  the  judiciary  should  be  elec- 
tive ;  and  that  no  slave  should  be  brought  into  the  State. 
The  last  feature  was  changed  to  a  gradual  abolition  of 
slavery  as  above  specified.  This  constitution  also  made 
an  attempt  to  intrpduce  the  township  system  of  govern- 
ment for  local  affairs ;  but  the  system  was  repugnant  to 
the  feelings  of  the  people,  and  was  abolished  by  the  next 
constitution.  May  24,  1866,  an  amendment  was  added 
disfranchising  all  persons  who  had  voluntarily  given  aid 
and  comfort  to  the  Rebellion  since  June  I,  1861 ;  and  the 
provision  of  the  constitution  that  no  one  could  hold  office 
unless  entitled  to  vote  made  the  amendment  still  more 
sweeping.  The  capital  has  since  remained  at  Wheeling, 
except  from  April,  1870,  until  May,  1875,  when  it  was 
located  at  Charleston.  April  27,  1871,  an  amendment 
was  ratified  by  popular  vote,  striking  out  the  word 
"white"  from  the  suffrage  clause,  and  also  the  disfran- 
chising amendment  of  1866. 

The  present  constitution  was  framed  by  a  convention 

1  See  Reconstruction. 


Political  Events  of  the  Civil  War      411 

at  Charleston,  January  i6-April  g,  1872.  Its  principal 
changes  were  the  increase  of  the  Senate  to  twenty-four 
members,  chosen  for  four  years,  and  of  the  House  to 
sixty-five  members,  chosen  for  two  years;  a  prohibition 
of  registration  laws,  and  of  special  legislation  in  a  num- 
ber of  specified  cases;  the  increase  of  the  governor's 
term  to  four  years l ;  and  the  abolition  of  the  township 
system. 

Boundaries. — The  boundaries  of  the  State  are  not  de- 
fined in  the  constitution,  which  only  specifies  the  counties 
of  Virginia  included  within  it. 

Governors. —  Arthur  J.  Boreman,  1863-9;  Wm.  E. 
Stephenson,  1869-71 ;  John  J.  Jacob,  1871-7;  Henry  M. 
Matthews,  1877-81  ;  Jacob  B.  Jackson,  1881-5. 

Political  History. —  Until  1870  the  majority  of  the 
voters  of  the  State  were  Republican,  and  its  State  officers 
even  of  that  party.  Even  in  1860  the  Republicans  had 
contested  two  of  the  counties,  and  had  given  Lincoln  a 
popular  vote  of  1929  in  this  part  of  the  State.  When 
war  fairly  began,  the  Republicans,  under  the  name  of 
" unconditional  Union  men,"  took  complete  control  of 
the  new  State.  In  1864  Lincoln  received  nearly  seventy 
per  cent,  of  the  total  popular  vote;  and  in  1868  Grant 
received  nearly  sixty  per  cent.  But  when  the  war  ended, 
the  return  of  disbanded  Confederate  soldiers,  particularly 
in  the  southern  and  eastern  parts  of  the  State,  intro- 
duced a  troublesome  complication  into  politics. 

At  first  the  dominant  party  met  this  by  the  disfranchis- 
ing amendment  of  1866,  enforcing  it  by  registration  laws 
and  test  oaths,  and  suppressing  resistance  by  force.  The 
result  was  that  in  1869  the  number  of  disfranchised  citi- 
zens was  officially  reported  as  29,316,  the  number  of 
actual  voters  being  about  fifty  thousand ;  and  as  no  dis- 
franchised person  could  hold  office,  public  business  was 
seriously  interfered  with  in  many  parts  of  the  State. 

1  See  also  Riders,  Veto. 


412  The  Slavery  Controversy 

The  first  sign  of  compromise  was  the  "Flick  Amend- 
ment," finally  adopted  in  1871.  It  was  supported  by 
moderate  Republicans  and  Democrats,  as  it  combined 
amnesty  with  negro  suffrage,  and  in  the  struggle  over  it 
the  Democrats,  or  "conservatives,"  carried  the  State  and 
the  Lower  House  of  the  Legislature  in  1870,  and  the 
Senate  in  the  following  year.  In  1872  Grant  carried  the 
State  by  a  majority  of  2264  out  of  a  total  vote  of  62,366; 
but  since  that  time  the  State  has  been  so  steadily  Demo- 
cratic that  the  Republicans  almost  ceased  opposition  until 
1882,  when  they  elected  one  of  the  State's  four  Congress- 
men. In  1882  the  Legislature  was  composed  as  follows: 
Senate,  twenty  Democrats,  three  Republicans,  one  inde- 
pendent ;  House,  forty-six  Democrats,  seventeen  Repub- 
licans, two  independents.  Among  the  political  leaders 
of  the  State  have  been  the  following :  Arthur  J.  Boreman, 
Governor  (Republican),  1863-9,  and  U.  S.  Senator,  1869- 
75 :  Wm.  G.  Brown,  Democratic  Congressman  (from  Vir- 
ginia), 1845-9,  and  Unionist  Congressman,  1861-5  ;  J.  U. 
Camden,  Democratic  candidate  for  Governor  in  1868  and 
1873,  and  U.  S.  Senator  1881-87;  Allen  T.  Caperton, 
Whig  member  of  the  State  Legislature,  1853-60,  Con- 
federate Senator,  1860-5,  and  U.  S.  Senator  (Democrat) 
1875-6;  Henry  G.  Davis,  Democratic  U.  S.  Senator, 
1871-8;  Nathan  Goff,  Secretary  of  the  Navy  under 
Hayes,  and  Republican  Congressman,  1883-5 '»  Frank 
Hereford,  Democratic  Congressman,  1871-7  and  U.  S. 
Senator,  1877-81 ;  John  E.  Kenna,  Democratic  Con- 
gressman, 1877-85;  and  Waitman  T.  Willey,  Republi- 
can U.  S.  Senator  (from  Virginia)  1861-3,  and  (from  West 
Virginia)  1863-71. 

FOREIGN  RELATIONS  DURING  THE  CIVIL  WAR. — The 
chief  subjects  touching  foreign  relations  during  the  war 
were  the  Trent  Affair  and  the  Alabama  Claims,  in  con- 
nection with  Great  Britain,  and  the  intervention  in  Mexico, 


Political  Events  of  the  Civil  War      4J3 

in  relation  to  France.  On  the  latter  topic  see  the  Monroe 
Doctrine ;  Dana's  edition  of  Wheaton's  International  Laiv; 
the  Diplomatic  Correspondence  of  Seward,  and  other  ref- 
erences under  the  Monroe  Doctrine.  Seward's  treat- 
ment of  the  attempt  of  the  Confederate  Government  to 
negotiate ;  his  circular  letter  to  our  representatives  abroad ; 
England's  early  recognition  of  Southern  belligerency; 
the  problem  of  the  blockade  and  the  closing  of  the 
Southern  ports  of  entry ;  Davis's  letters  of  marque  and 
reprisal,  and  the  depredations  of  Southern  privateers  will 
be  found  fully  treated  of  by  the  various  authorities 
cited. 

The  "Trent  "  Affair.—  In  the  autumn  of  1861  the  gov- 
ernment of  the  Confederate  States  (see  that  title)  sent  J. 
M.  Mason  and  John  Slidell  as  commissioners  to  Great 
Britain  and  France  respectively.  They  ran  the  blockade 
to  Havana,  and  there  embarked  on  an  English  merchant 
steamer,  the  Trent,  for  St.  Thomas,  on  their  way  to 
England.  About  noon  of  November  8th  the  vessel  was 
stopped  in  the  old  Bahama  channel  by  the  United  States 
steamer  San  Jacinto,  Captain  Wilkes,  and  the  commis- 
sioners were  taken  out  of  her  and  transferred  to  Fort 
Warren,  in  Boston  harbor,  as  prisoners. 

Captain  Wilkes's  act  was  warmly  approved  by  the 
people  of  the  United  States;  but  he  had  nevertheless 
transgressed  the  neutral  rights  for  which  the  United 
States  had  always  contended,  and  he  had  undertaken  to 
put  in  force  the  right  of  visitation  and  search  which  the 
United  States  had  found  insufferable  when  it  was  claimed 
by  Great  Britain.1  The  United  States  Government  there- 
fore disavowed  his  action,  and  surrendered  the  prisoners 
to  Great  Britain.  There  was,  however,  a  residuum  of 
American  ill-feeling  toward  Great  Britain  because  of 
the  British  Government's  officious  preparations  for  an 
improbable  war.  Before  giving  the  United  States  any 

1  See  Embargo. 


4*4  The  Slavery  Controversy 

opportunity  for  explanation  or  disavowal,  the  British 
ministry  prepared  troops  and  transportation  for  Canada, 
forbade  by  proclamation  the  exportation  of  arms  and 
munitions  of  war,  and  instructed  Lord  Lyons,  its  Minis- 
ter at  Washington,  to  withdraw  from  the  United  States 
unless  the  prisoners  were  set  at  liberty  and  an  apology 
tendered  within  a  time  "not  exceeding  seven  days." 

"  Mr.  Seward  took  the  ground  that  we  had  the  right  to  de- 
tain the  British  vessel  and  to  search  for  contraband  persons 
and  dispatches,  and  moreover  that  the  persons  named  and 
their  dispatches  were  contraband.  But  he  found  good  reason 
for  surrendering  the  Confederate  envoys  in  the  fact  that  Cap- 
tain Wilkes  had  neglected  to  bring  the  Trent  into  a  Prize 
Court  and  to  submit  the  whole  transaction  to  judicial  exami- 
nation. Mr.  Seward  certainly  strained  the  argument  of  Mr. 
Madison  as  Secretary  of  State  in  1804  to  a  most  extraordinary 
degree  when  he  apparently  made  it  cover  the  ground  that  we 
would  quietly  have  submitted  to  British  right  of  search  if  the 
'  Floating  Judgment-seat '  could  have  been  substituted  by  a 
British  Prize  Court.  The  seizure  of  the  Trent  would  not  have 
been  made  more  acceptable  to  the  English  Government  by 
transferring  her  to  the  jurisdiction  of  an  American  Prize 
Court,  unless  indeed  that  Court  should  have  decided,  as  it 
most  probably  would  have  decided,  that  the  seizure  was 
illegal.  .  .  . 

"  It  is  with  no  disposition  to  detract  from  the  great  service 
rendered  by  Mr.  Seward  that  a  dissent  is  expressed  from  the 
ground  upon  which  he  placed  the  surrender  of  Mason  and 
Slidell.  It  is  not  believed  that  the  doctrine  announced  by 
Mr.  Seward  can  be  maintained  on  sound  principles  of  Inter- 
national Law,  while  it  is  certainly  in  conflict  with  the  practice 
which  the  United  States  had  sought  to  establish  from  the 
foundation  of  the  Government.  The  restoration  of  the  envoys 
on  any  such  apparently  insufficient  basis  did  not  avoid  the 
mortification  of  the  surrender;  it  only  deprived  us  of  the  fuller 
credit  and  advantage  which  we  might  have  secured  from  the 
act.  It  is  to  be  regretted  that  we  did  not  place  the  restoration 


Political  Events  of  the  Civil  War      415 

of  the  prisoners  upon  franker  and  truer  grounds,  viz.,  that 
their  seizure  was  in  violation  of  the  principles  which  we  had 
steadily  and  resolutely  maintained — principles  which  we  would 
not  abandon  either  for  a  temporary  advantage  or  to  save  the 
wounding  of  our  national  pride. 

"  The  luminous  speech  of  Mr.  Sumner,  when  the  papers  in 
the  Trent  case  were  submitted  to  Congress,  stated  the  ground 
for  which  the  United  States  had  always  contended  with  ad- 
mirable precision.  We  could  not  have  refused  to  surrender 
Mason  and  Slidell  without  trampling  upon  our  own  principles 
and  disregarding  the  many  precedents  we  had  sought  to  estab- 
lish. But  it  must  not  be  forgotten  that  the  sword  of  precedent 
cut  both  ways.  It  was  as  absolutely  against  the  peremptory 
demand  of  England  for  the  surrender  of  the  prisoners  as  it 
was  against  the  United  States  for  the  seizure  of  them.  What- 
ever wrong  was  inflicted  on  the  British  flag  by  the  action  of 
Captain  Wilkes  had  been  time  and  again  inflicted  on  the  Amer- 
ican flag  by  officers  of  the  English  navy, — without  cause,  with- 
out redress,  without  apology.  Hundreds  and  thousands  of 
American  citizens  had  in  time  of  peace  been  taken  by  British 
cruisers  from  the  decks  of  American  vessels  and  violently 
impressed  into  the  naval  service  of  that  country."  * 

'"Alabama"  Claims. — April  16,  1856,  the  representatives 
of  Great  Britain,  Austria,  France,  Russia,  Prussia,  and 
Turkey,  assembled  in  Congress  at  Paris,  adopted  the 
following  declaration,  to  which  nearly  all  other  civilized 
nations  afterwards  acceded :  1st.  Privateering  is  and  re- 
mains abolished.  2d.  The  neutral  flag  covers  enemy's 
goods,  with  the  exception  of  contraband  of  war.  3d. 
Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  enemy's  flag.  4th.  Block- 
ades, in  order  to  be  binding,  must  be  effective;  that  is 
to  say,  maintained  by  forces  sufficient  really  to  prevent 
access  to  the  coast  of  the  country.  To  this  Declaration 
of  Paris  the  United  States  refused  to  accede,  being  un- 
willing, by  abolishing  privateering,  while  other  nations 

1  Elaine,  Twenty  Years  of  Congress,  vol.  i.,  pp.  584-586. 


4*6  The  Slavery  Controversy 

maintained  enormous  fleets,  to  accept  the  necessity  of 
keeping  up  a  large  fleet  in  self-defence ;  but  the  President 
offered,  July  29,  1856,  to  go  further  and  adopt  an  addi- 
tional article  which  should  entirely  exempt  private  prop- 
erty, even  of  citizens  of  belligerents,  from  capture  on  the 
sea,  either  by  privateers  or  national  vessels.  Great  Britain 
refused  to  agree  to  this,  and  the  negotiation  failed.  The 
United  States  was  therefore,  in  1861,  the  only  commercial 
nation  not  committed  to  the  abolition  of  privateering. 

The  fall  of  Fort  Sumter,  in  April,  1861,'  was  followed 
by  a  series  of  retaliatory  measures,  to  which  the  use  of 
the  telegraph  gave  an  extraordinary  swiftness  of  succes- 
sion. On  the  1 5th  of  that  month  the  President,  by  pro- 
clamation, announced  the  existence  of  the  Rebellion,  and 
called  for  volunteers  to  suppress  it ;  on  the  I7th  Jefferson 
Davis  offered  letters  of  marque  and  reprisal,  against  the 
commerce  of  the  United  States,  to  private  armed  vessels, 
and  privateers  at  once  began  to  issue  from  Southern  ports ; 
and  on  the  ipth,  by  proclamation,  the  President  declared 
a  partial  blockade  of  the  Southern  ports,  which  was  made 
general  on  the  27th. 

On  the  24th  Secretary  Seward  applied  to  the  powers 
which  had  made  the  Declaration  of  Paris  for  permission 
to  accede  to  it  without  qualification.  To  this  Great 
Britain,  acting  in  unison  with  France,  consented,  on  con- 
dition that  the  engagement  should  not  "have  any  bearing, 
direct  or  indirect,  on  the  internal  differences  now  prevail- 
ing in  the  United  States."  As  this  seemed  to  imply  that 
the  de  facto  government  of  the  Southern  Confederacy 
should  still  be  allowed  to  keep  privateers  afloat,  the 
United  States  declined  to  accept  it  and  allowed  this 
negotiation  to  drop,  with  the  following  concluding  moni- 
tion, May  2ist:  "Great  Britain  has  but  to  wait  a  few 
months,  and  all  her  present  inconveniences  will  cease 
with  all  our  own  troubles.  If  she  take  a  different  course 

1  See  Rebellion. 


Political  Events  of  the  Civil  War      4*7 

she  will  calculate  for  herself  the  ultimate  as  well  as  the 
immediate  consequences." 

In  the  meantime  the  Queen's  proclamation  of  May  I3th 
had  announced  her  neutrality  between  the  United  States 
and  the  Confederate  States,  had  forbidden  her  citizens 
to  take  part  with  either,  and  had  ordered  her  official  ser- 
vants to  accord  belligerent  rights  to  both.  This  included 
the  refusal  of  warlike  equipments  to  the  vessels  of  both 
parties,  the  preservation  of  the  peace  between  their  ves- 
sels in  British  harbors,  and  the  detention  of  a  war  vessel 
of  either  for  twenty-four  hours  after  a  hostile  vessel  had 
left  the  port. 

Under  this  proclamation  the  position  of  Great  Britain 
was  difficult  at  the  best,  because  of  the  great  number  and 
extent  of  her  colonies  in  every  part  of  the  world,  for 
whose  action  she  was  responsible ;  but  the  active,  notori- 
ous, and  undisguised  sympathy  of  many  of  her  colonial 
officers  and  citizens  for  the  Rebellion  and  its  cruisers 
contributed  very  largely  to  the  difficulties  of  the  home 
government  and  to  the  subsequent  American  demands 
upon  it  for  damages.  While  the  rule  prohibiting  the  ob- 
taining, in  British  harbors,  of  warlike  equipments,  and 
particularly  of  coal  except  within  certain  limits,  was 
stringently  enforced  against  Federal  vessels,  Confederate 
privateers  generally  found  little  difficulty  in  evading 
it  by  the  connivance  of  colonial  officials;  and  several 
colonial  harbors,  particularly  that  of  Nassau,  became 
depots  of  supplies  for  this  species  of  vessel,  to  which 
they  resorted  to  prepare  for  new  voyages  of  destruction. 

However  impartial  the  treatment  of  belligerent  vessels 
may  have  been  in  the  ports  of  Great  Britain,  in  the  ports 
of  British  colonies  United  States  war  vessels  found  a 
neutrality  so  rigorous  in  its  exactions  as  to  be,  in  con- 
trast with  the  open  or  hidden  privileges  accorded  to  rebel 
cruisers,  fully  tantamount  to  unfriendliness.  They  were 
frequently  denied  the  privilege  of  taking  coal  on  board 


VOL.  II. — 27. 


4*8  The  Slavery  Controversy 

which  had  been  left  on  deposit  in  British  harbors  by 
the  United  States  Government,  while  rebel  privateers, 
though  without  a  port  of  their  own,  found  no  great 
difficulty  in  obtaining  in  British  harbors  the  same  "article 
of  warlike  equipment,"  without  which  they  could  not 
have  kept  the  sea  a  single  month. 

On  these  grounds  the  American  Minister  to  Great 
Britain,  C.  F.  Adams,  repeatedly  warned  the  British 
Government  that  the  United  States  had  a  fair  claim  for 
compensation  for  the  damage  done  to  its  commerce ;  and 
this  was  subsequently  enlarged  by  the  claim  that  the 
Queen's  proclamation  of  May  I3th  was  itself  issued  pre- 
cipitately and  in  violation  of  treaties,  and  that  it  gave 
possibility  to  rebel  depredations  which  would  have  been 
impossible  without  it.  It  is  but  fair  to  add  that  the 
proclamation  was  defended  by  the  Queen's  ministers  on 
the  ground  that  rebel  privateers  were  already  upon  the 
sea,  and  that  it  was  necessary  to  free  British  officers  who 
should  meet  them  from  the  necessity  of  treating  them  as 
pirates. 

The  British  foreign  enlistment  act  of  July  3,  1819  (59 
Geo.  III.  cap.  69),  prohibits  under  penalties,  and  em- 
powers the  government  to  prevent  the  equipment  of  any 
land  or  sea  forces  within  the  British  dominions  to  operate 
against  the  territory  or  commerce  of  a  friendly  nation. 
In  the  United  States  the  act  of  April  20,  1818,  which  is 
closely  similar  in  its  terms,  preceded  it,  and  the  two 
governments  are  supposed  to  have  acted  with  a  common 
understanding  in  the  matter. 

During  the  Crimean  War  the  United  States  had  fulfilled 
their  obligations  promptly  and  fully  by  seizing  and  de- 
taining vessels  represented  to  be  destined  for  the  service 
of  Russia;  and  the  claim  was  now  advanced,  and  finally 
established,1  that  Great  Britain  did  not  correspondingly 
exercise  "due  diligence"  to  fulfil  its  obligations.  The 
1  See  Geneva  Award. 


Political  Events  of  the  Civil  War      419 

first  privateers,  during  the  year  1861,  were  equipped  in 
Southern  ports,  and  gained  the  open  sea  by  running 
the  blockade.  When  the  most  formidable  of  these,  the 
Sumter,  was  hopelessly  blocked  up  in  Gibraltar  by  the  U. 
S.  steamer  Tuscarora,  and  had  to  be  sold  in  January, 
1862,  the  Confederate  agents  in  Great  Britain  at  once 
began  the  construction  of  armed  vessels  there,  evad- 
ing the  provisions  of  the  enlistment  act  by  fictitious 
ownership. 

From  February  18  until  March  22,  1862,  Minister 
Adams  represented  to  the  British  Government  that  a  war 
vessel  then  building  by  the  Messrs.  Miller,  of  Liverpool, 
the  Oreto  (afterward  the  Florida],  though  nominally 
destined  for  Palermo,  in  Sicily,  was  evidently  and  no- 
toriously intended  for  war  against  the  United  States. 
As  she  contained  no  arms  or  munitions  of  war,  she  was 
allowed  to  sail,  and  proceeded  to  Green  Bay,  near  Nas- 
sau, where  she  enlisted  additional  men,  and  was  trans- 
formed into  a  Confederate  privateer,  arms  and  munitions 
having  been  brought  from  Great  Britain  in  another  vessel. 
The  Florida  was  seized  by  a  British  steamer,  the  Grey- 
hound, at  Nassau,  but  released ;  and  the  British  Govern- 
ment refused  to  satisfy  the  demands  of  the  United  States 
that  the  vessel  should  be  seized  as  a  violator  of  the 
enlistment  act  whenever  she  should  come  within  British 
jurisdiction. 

Soon  after  the  departure  of  the  Oreto,  or  Florida,  Min- 
ister Adams  began  collecting  evidence  against  another 
vessel  then  building  by  the  Messrs.  Laird  at  Birkenhead, 
near  Liverpool,  and  called,  from  the  number  of  merchants 
who  had  subscribed  the  expense  of  her  construction,  the 
290  (afterward  the  Alabama).  June  23d,  he  gave  notice 
to  Earl  Russell  of  what  he  believed  to  be  the  real  char- 
acter of  the  vessel,  and  solicited  "such  action  as  might 
tend  either  to  stop  the  projected  expedition,  or  to  estab- 
lish the  fact  that  its  purpose  was  not  inimical  to  the 


42o  The  Slavery  Controversy 

people  of  the  United  States."  That  action  was  never 
taken.  July  i6th,  the  American  Minister  submitted  to 
Earl  Russell  his  evidence,  and  the  opinion  of  distin- 
guished English  counsel  that  "the  evidence  was  almost 
conclusive."  A  week  afterward,  July  23d,  he  offered 
fresh  evidence,  and  a  most  emphatic  opinion  of  the  same 
counsel,  to  the  following  effect : 

I  have  perused  the  above  affidavits,  and  I  am  of  opinion 
that  the  collector  of  customs  would  be  justified  in  detaining 
the  vessel.  Indeed,  I  should  think  it  his  duty  to  detain  her, 
and  that  if,  after  the  application  which  has  been  made  to  him, 
supported  by  the  evidence  which  has  been  laid  before  me,  he 
allows  the  vessel  to  leave  Liverpool,  he  will  incur  a  heavy  re- 
sponsibility— a  responsibility  of  which  the  board  of  customs, 
under  whose  direction  he  appears  to  be  acting,  must  take  their 
share.  It  appears  difficult  to  make  out  a  stronger  case  of  in- 
fringement of  the  foreign  enlistment  act,  which,  if  not  en- 
forced on  this  occasion,  is  little  better  than  a  dead  letter.  It 
well  deserves  consideration  whether,  if  the  vessel  be  allowed 
to  escape,  the  Federal  Government  would  not  have  serious 
grounds  of  remonstrance." 

The  vessel  was  allowed  to  escape.  The  board  of 
customs  referred  the  papers  to  their  counsel ;  the  Queen's 
advocate,  Sir  John  D.  Harding,  fell  ill;  other  counsel 
were  called  in,  who  advised  the  seizure  of  the  vessel; 
but,  before  this  opinion  could  be  acted  upon,  the  Ala- 
bama had  sailed,  July  2Qth,  without  register  or  clearance, 
to  the  Terceira,  one  of  the  Azores,  where  she  took  her 
equipment  from  two  British  vessels  and  became  a  Con- 
federate war  vessel,  commissioned  "to  sink,  burn,  and 
destroy  "  the  commerce  of  the  United  States.  No  effec- 
tive pursuit  of  the  vessel  was  made  by  Great  Britain,  and 
she  was  hospitably  received,  without  any  attempt  to 
arrest  her,  in  several  British  colonies  afterward. 

In  April,  1863,  the  Japan,  afterward  called  the  Georgia, 


Political  Events  of  the  Civil  War      42 1 

left  Greenock,  and  soon  after,  upon  the  coast  of  France, 
she  took  an  equipment  from  another  steamer  and  became 
a  Confederate  cruiser.  For  over  a  year  she  continued 
her  cruise  until  she  was  captured  off  Lisbon,  August  15, 
1864,  by  the  United  States  steamer  Niagara,  after  a 
transfer  to  a  Liverpool  merchant. 

In  September,  1864,  the  steamer  Sea  King,  owned  by 
a  Liverpool  merchant,  cleared  at  London  for  India.  At 
Madeira  she  met  another  vessel,  the  Laurel,  of  Liverpool, 
from  which  she  received  her  armament  and  men,  and  she 
then  became  the  Confederate  war  vessel  Shenandoah. 
During  her  career  as  a  cruiser,  before  her  surrender  to 
the  British  Government,  November  6,  1865,  the  Shenan- 
doah took  in  supplies  and  enlisted  men  at  Melbourne, 
Australia,  with  the  connivance,  as  the  American  consul 
asserted,  of  the  British  authorities  at  that  port. 

Besides  the  devastation  wrought  by  the  rebel  cruisers, 
the  United  States  considered  the  toleration  by  Great 
Britain  of  Confederate  administrative  bureaus  on  British 
soil,  by  means  of  which  alone  offensive  operations  against 
American  commerce  were  possible,  as  ground  of  reclama- 
tion. The  action  of  the  British  Government  in  maintain- 
ing an  official  union  with  France  upon  questions  growing 
out  of  the  Rebellion,  was  also  considered  unfriendly  to 
the  United  States  in  the  absence  of  any  recognition  of 
the  Confederate  States  as  an  independent  nation.  The 
whole  mass  of  grievances  of  which  the  United  States 
expected  satisfaction  from  Great  Britain,  and  to  which 
the  name  "Alabama  Claims  "  was  commonly  given,  may 
best  be  summed  up  in  the  words  of  the  American  mem- 
bers of  the  joint  high  commission : 

"  Extensive  direct  losses  in  the  capture  and  destruction  of  a 
large  number  of  vessels,  with  their  cargoes,  and  in  the  heavy 
national  expenditures  in  the  pursuit  of  the  cruisers ;  and  indi- 
rect injury  in  the  transfer  of  a  large  part  of  the  American 


422  The  Slavery  Controversy 

commercial  marine  to  the  British  flag,  in  the  enhanced  payment 
of  insurance,  in  the  prolongation  of  the  war,  and  in  the  addition 
of  a  large  sum  to  the  cost  of  the  war  and  the  suppression  of 
the  Rebellion." 

• 

When  it  first  became  apparent  that  the  neutrality  of 
Great  Britain  would  be  a  source  of  danger  to  the  United 
States,  Minister  Adams  was  very  active  in  pressing  each 
fresh  violation  of  neutrality  upon  the  attention  of  the 
British  Government,  not,  as  he  explained  to  his  own 
Government,  with  any  hope  of  obtaining  more  stringent 
laws,  or  greater  diligence  in  the  execution  of  existing 
laws,  but  with  the  intention  of  "making  a  record"  to 
which  the  United  States  could  thereafter  appeal.  The 
American  ill-feeling  toward  Great  Britain,  which  was  de- 
veloped by  her  haste  to  accord  belligerent  rights  to  the 
Confederacy,  had  grown  upon  every  new  grievance  until, 
when  the  Rebellion  was  at  last  suppressed,  it  had  settled 
into  a  dangerous  disposition  to  leave  the  matter  unsettled 
for  the  purpose  of  applying  the  British  system  of  neu- 
trality to  British  commerce  in  the  event  of  any  future 
war  or  rebellion  against  Great  Britain. 

The  American  Government,  however,  did  not  share 
this  disposition.  It  continued  to  press  its  claim  for  com- 
pensation in  the  higher  tone  which  was  justified  by  its 
altered  circumstances,  but  at  the  same  time,  January  12, 
1866,  offered  to  submit  "the  whole  controversy"  to 
arbitration.  The  British  Government  offered  to  accept 
an  arbitration  limited  to  the  depredations  of  the  Alabama 
and  similar  vessels,  but  this  was  declined  by  the  United 
States  for  the  reason  that  it  involved  a  waiver  of  the  posi- 
tion, which  they  had  always  held,  that  the  Queen's  pro- 
clamation of  1861,  which  accorded  belligerent  rights  to 
insurgents  against  the  authority  of  the  United  States, 
was  not  justified  on  any  grounds,  either  of  necessity  or 
of  moral  right,  and  therefore  was  an  act  of  wrongful  in- 


Political  Events  of  the  Civil  War      423 

tervention,  a  departure  from  the  obligations  of  existing 
treaties,  and  without  the  sanction  of  the  law  of  nations. 

January  14,  1869,  Reverdy  Johnson,  American  Min- 
ister to  Great  Britain,  arranged  a  treaty  which,  without 
mentioning  the  Alabama  claims  in  particular,  provided 
for  the  submission  to  arbitration  of  "all  claims"  of  either 
country  against  the  other  since  February  8,  1853.  In  the 
Senate  this  treaty  had  but  a  single  vote  in  its  favor,  and 
was  not  ratified.  Negotiations  on  this  subject  then  prac- 
tically came  to  a  stand  until  January  26,  1871,  when  the 
British  Government  proposed  the  appointment  of  a  joint 
commission  to  sit  at  Washington  and  arrange  the  terms 
of  a  treaty  to  cover  the  disputes  as  to  the  Canadian 
fisheries  and  other  questions  at  issue  between  the  United 
States  and  Canada.  The  proposition  was  accepted  on 
condition  that  the  treaty  should  also  make  some  disposi- 
tion of  the  Alabama  claims.  To  this  condition  Great 
Britain  agreed,  and  five  high  commissioners  from  each 
country  met  in  joint  session  at  Washington,  February 
27,  1871.  After  thirty-four  meetings,  the  commission 
agreed  upon  the  terms  of  the  Treaty  of  Washington,  which 
was  signed  by  the  commissioners  May  8th,  ratified  by 
the  Senate,  by  a  vote  of  50  to  12,  May  24th,  ratified  by 
Great  Britain,  June  I7th,  and  proclaimed  in  force  July  4, 
1871,  by  President  Grant.  It  provided  for  arbitration 
(i)  as  to  the  Alabama  claims,  (2)  as  to  claims  of  British 
subjects  against  the  United  States,  (3)  as  to  the  fisheries, 
and  (4)  as  to  the  northwest  boundary  of  the  United 
States.  The  arbitrators  upon  the  Alabama  claims  were 
to  be  five  in  number,  appointed  by  the  President  of  the 
United  States,  her  Britannic  Majesty,  the  King  of  Italy, 
the  President  of  the  Swiss  confederation,  and  the  Em- 
peror of  Brazil;  and  were  to  hold  their  sessions  at 
Geneva,  Switzerland.1 

1  For  the  constitution  and  award  of  the  tribunal  of  arbitration,  and  the 
provisions  of  the  treaty  governing  its  deliberations,  see  Geneva  Award. 


424  The  Slavery  Controversy 

On  Emancipation  Proclamation  see  2  Greeley's  Ameri- 
can Conflict,  249;  Appleton's  Annual  Cyclopedia,  1863, 
834;  2  A.  H.  Stephens's  War  Between  the  States,  550; 
Harris's  Political  Conflict  in  America,  333;  Pollard's 
Life  of  Davis,  477;  Schuckers's  Life  of  S.  P.  Chase,  441, 
453;  McPherson's  History  of  the  Rebellion,  220;  North 
American  Review,  February  and  August,  1880;  Bur- 
gess's Civil  War  and  the  Constitution ;  Rhodes's  U.  S. 
History;  Elaine's  Twenty  Years;  Schouler,  vol.  vi. ; 
Smith's  Political  History  of  Slavery  ;  Hay  and  Nicolay's 
Lincoln  ;  authorities  under  Abolition,  War  Powers,  and 
Rebellion.  The  text  of  the  two  proclamations  is  in  12 
Stat.  at  Large,  1267,  1268.  See  also  13  Wallace's  Re- 
ports, 654;  16  Wallace's  Reports,  68;  18  Wallace's  Reports, 
546;  92  U.  S.  Reports,  542;  20  La.  Ann.  Reports,  199; 
43  Ala.  Reports,  592. 

On  Habeas  Corpus  see  3  Blackstone's  Commentaries,  128 
(original  paging);  Bacon's  Abridgment  ("Habeas  Corpus") ; 

1  Howell's  State   Trials,  pref.,  xxvi. ;  20  ib.,  addenda, 
1374;  6  ib.,  1189;  2  Kent's  Commentaries  (4th  edit.),  25; 
Story's  Commentaries,  (edit.  1833),  §  1332;  Burnet's  His- 
tory of  His  Own  Time  (edit.  1838),  321 ;  Hurd  On  Habeas 
Corpus ;  a  copious  bibliography  of  the  writ,  its  history 
and  practice,  up  to  1842,  is  in  3  Hill's  Reports,  647;  the 
most  interesting  precedents  are  collected  in  Garfield's 
argument  in  the  Milligan  Case,  4  Wallace's  Reports,  44; 

2  B.  R.  Curtis's  Works,  317;  Whiting's  War  Powers  (loth. 
edit.),  161 ;  E.  Ingersoll's  History  and  Law  of  the  Writ 
of  Habeas  Corpus,  and  Personal  Liberty  and  Martial  Law  ; 
Breck's  Habeas  Corpus  and  Martial  Law  ;  North  Ameri- 
can Review,  October,  1861 ;  Habeas  Corpus  Pamphlets  of 
1862  (particularly  H.  Binney's  Privilege  of  the   Writ  of 
Habeas  Corpus,  and  G.  M.  Wharton's  Remarks  thereon); 
Cooley's  Constitutional  Limitations,  344.     II.  4  Cranch, 
75;  12  Wheat.,  19;  i  Stat.  at  Large,  73  (the  act  of  Sep- 
tember 24,  1789);  4  ib.,  634  (the  act  of  March  2,  1833); 


Political  Events  of  the  Civil  War      425 

5  ib.,  539  (the  act  of  August  29,  1842);  12  ib.,  755  (the 
act  of  March  3,  1863);  17  ib.,  13  (the  act  of  April  20, 
1871).  III.  2  Parton'sLi/eo/Jac&son,  306;  5  Hildreth's 
United  States,  626;  3  Ben  ton's  Debates  of  Congress,  490, 
504;  21  How.,  506;  Tyler's  Z,z/>  <?/"  Taney,  420,  461,  640; 
Taney,  246;  Burnham's  Memoirs  of  the  Secret  Service ; 
Baker's  History  of  the  Secret  Service;  Marshall's  American 
Bastile  ;  Sangster's  Bastiles  of  the  North  ;  H  o ward's  Four- 
teen Months  in  an  American  Bastile  ;  Mahoney's  Prisoner 
of  State;  Thavin's  Arbitrary  Arrests  in  the  South;  Lester 
and  Brownell's  Confederate  States  Military  Laws  (1864); 
Reports  of  the  Provost  Marshal  General ;  Pollard's  Life 
of  Davis,  327;  Pittman's  Indianapolis  Treason  Trials 
(1865);  ex parte  Milligan,  4  Wallace,  107  (majority  opin- 
ion); 132  (dissenting  opinion);  Circulars  of  the  Provost 
Marshal  General,  May  15,  i863~March  27,  1865. 

See  (I.)  I  Schouler's  United  States,  130;  Dwight's 
Hartford  Convention,  247,  318;  6  Hildreth's  United  States, 
529;  2  Ingersoll's  Second  War  with  Great  Britain,  270; 
Carey's  Olive  Branch,  378;  3  Spencer's  United  States, 
262;  the  act  of  Feb.  28,  1795,  is  in  I  Stat.  at  Large,  424, 
and  see  also  12  WJteat.,  19.  (II.)  McPherson's  History 
of  the  Rebellion,  261 ;  Appleton's  Annual  Cyclopcedia, 
1863-4;  D.  M.  Barnes's  Draft  Riots  in  New  York;  Baker's 
History  of  the  Secret  Service;  4  Victor's  History  of  the 
Rebellion,  124;  the  acts  of  March  3,  1863,  Feb.  24,  and 
July  4,  1864,  are  in  12  Stat.  at  Large,  731,  13  Stat.  at 
Large,  6,  379.  (III.)  Pollard's  Life  of  Davis,  325 ;  16 
Graft.  (Va.),  443,  470;  34  Geo.,  22,  85;  38  Ala.,  457;  39 
Ala.,  475,  609.  (IV.)  law  authorities  under  Congress, 
Powers  of,  VIII. ;  Whiting's  War  Powers  (roth  edit.), 
205 ;  I  Hough's  New  York  Convention  Manual  of 
zSfyj  33;  Story's  Commentaries,  §§  1173,  1202;  Tiffany's 
Constitutional  Law,  §  430. 

On  West  Virginia  see  2  Poore's  Federal  and  State  Con- 
stitutions ;  2  Hough's  American  Constitutions ;  3  Wilson's 


426 

Slave  Power,  142;  2  Draper's  Civil  War  in  America, 
241 ;  Tribune  Almanac,  1861-62  ;  Appleton's  Annual  Cy- 
clopcedia,  1861-82;  Burgess's  Civil  War  and  the  Consti- 
tution; Elaine's  Twenty  Years  of  Congress ;  Rhodes's 
History  of  the  United  States. 

On  Trent  Affair  see  Diplomatic  Correspondence  for 
1 861-2,  and  authorities  under  Rebellion,  as  2  Draper's 
Civil  War,  540;  2  Elaine's  Twenty  Years;  Rhodes's  U. 
5.  History ;  Schouler,  vol.  vi. ;  Thomas  L.  Harris's  The 
"Trent"  Affair;  Sumner's  Speech  on  the  "Trent" 
Affair. 

On  Alabama  claims  see  The  Case  of  the  United  States 
to  be  Laid  before  the  Tribunal  of  Arbitration  to  be  Con- 
vened at  Geneva,  London,  1872;  Case  Presented  on  the 
Part  of  Her  Britannic  Majesty  to  the  Tribunal  of  Arbi- 
tration, London,  1872;  Official  Correspondence  on  the 
Claims  in  Respect  to  the  "Alabama,"  London,  1867; 
Bluntschli,  Opinion  impartiale  sur  la  question  de  la  Ala- 
bama, Berlin,  1870;  Geffcken,  Die  Alabama/rage,  Stutt- 
gart, 1872;  Diplomatic  Correspondence  of  the  United 
States  (with  messages),  1861-71;  Cushing's  Treaty  of 
Washington.  The  act  of  April  20,  1818,  is  in  3  Stat.  at 
Large,  448.  The  treaty  is  in  Stat.  at  Large. 


CHAPTER  XIV 

RECONSTRUCTION — PART  I 

RECONSTRUCTION  embraces  the  political  problem! 
l\  of  the  restoration  of  the  seceding  States  to  their/ 
normal  relations  with  the  Union  after  the  suppression  of/ 
armed  resistance  therein  to  the  Constitution  and  the  laws- 
Such  a  problem  would  have  been  easy  of  solution  under 
a  simple  and  direct  acting  government ;  in  a  highly  com- 
plicated system  like  that  of  the  United  States,  in  which 
the  parts  and  their  action  are  so  delicately  adjusted,  any 
derangement  shows  its  effects  everywhere;  and  a  de- 
rangement so  great  as  was  introduced  by  secession,  since 
it  cannot  check  the  national  force,  is  almost  certain  to 
throw  all  the  wheels  out  of  gear,  convert  the  national 
machine  into  a  blind  and  guideless  power,  and  make  a 
bad  master  out  of  a  good  servant.  In  the  matter  of  re- 
construction the  difficulty  was  increased : 

1.  By  the  length  and  bitterness  of  the  war.     The  terms 
of  reconstruction  which  were  possible  in  1862,  1863,  1864, 
or   1865,  were  each  of  them   impossible  within  a  year 
thereafter.       Every    battle   lost    and  won,   every  vessel 
sunk,  every  house  burned,  every  case  of  mistreatment  of 
prisoners,  was  in  its  way  a  factor  not  only  in  anti-slavery 
action,  but  in  final  reconstruction. 

2.  By  the  status  of  the  freedmen.     It  was  impossible 
that  the  successful  party  should  feel  no  interest  whatever 
in  the  fate  of  the  beings  who  had  been  converted  by  its 
success  from  chattels  into  persons.     It  was  natural  that 


The  Slavery  Controversy 

the  disposition  of  the  conquered  toward  the  freedmen 
should  be  keenly  and  suspiciously  scrutinized ;  and  thus 
every  act  of  individual  violence,  every  appearance  of 
organized  repression,  which  came  to  light  before  the 
work  of  reconstruction  was  completed,  became  a  silent 
factor  in  the  work. 

3.  By  the  existence  of  a  written  constitution  which 
provided  for  no  such  state  of  affairs.  An  omnipotent 
British  Parliament  would  have  soon  hit  on  a  formal  settle- 
ment, though  its  success  in  solving  the  Irish  problem  has 
not  been  so  swift  or  sure  as  to  make  us  wish  for  a  change 
of  regime.  The  American  Government  could  only  engage 
in  a  series  of  experiments,  more  or  less  successful,  and 
finally  rest  content  with  that  solution  which  seemed  to 
offer  the  least  difficulty  and  the  greatest  advantages  to 
the  nation.  "Happily  for  the  nation,"  says  Brownson, 
"few  blunders  are  committed  that  with  our  young  life 
and  elasticity  are  irreparable,  and  that  are  greater  than 
are  ordinarily  committed  by  older  and  more  experienced 
nations.  They  are  not  of  the  most  fatal  character,  and 
need  excite  no  serious  alarm  for  the  future." 

In  considering  the  question,  it  is  proposed,  I,  to  give, 
as  briefly  as  possible,  the  successive  theories  of  recon- 
struction; 2,  to  detail  the  work  as  it  was  finally  done; 
and  3,  4,  to  consider  its  failures  and  its  successes.  In  so 
doing,  there  are  certain  precedents  which  are  often  re- 
ferred to  by  all  parties,  and  these  may  as  well  be  given 
now,  for  reference. 

The  Guarantee  Clause. — The  Constitution  (Art.  IV., 
/  §  4)  speaks  as  follows:  "The  United  States  shall  guaran- 
I  tee  to  every  State  in  this  Union  a  republican  form  of 
government." 

To  this  was  often  added  the  following  paragraph  from 
the  powers  of  Congress  (Art.  I.,  §  8):  "To  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 


Reconstruction — Part  I  429 

vested  by  this  Constitution  in  the  Government  of  the 
United  States  or  in  any  department  or  officer  thereof." 
This,  it  was  claimed,  gave  Congress  power  to  pass  all 
laws  which  it  should  consider  "necessary  and  proper" 
for  carrying  into  effect  the  guarantee  clause.  This  would 
have  been  undeniable  if  the  language  of  the  clause  had 
been  "Congress  shall  guarantee,"  or  "the  Government 
shall  guarantee";  or  even  any  "department  or  officer 
shall  guarantee";  but  the  peculiar  phraseology,  "the 
United  States  shall  guarantee,"  seems  to  exclude  all 
these  interpretations,  and  give  the  power  concurrently  to 
all  the  governmental  agents,  executive,  legislative,  and 
judicial.  Even  in  this  view,  however,  the  case  of  Luther 
vs.  Borden  would  seem  to  show  that  Congress  has  the 
power  to  enact  laws  to  carry  into  execution  its  concurrent 
power  in  the  premises,  and  that  the  President  is  bound  to 
execute  them. 

The  Resolutions  of  i 86 i '. — At  the  special  session  of  1861 
joint  resolutions  were  introduced  to  define  the  objects  of 
the  war.  That  which  was  pertinent  to  this  subject  was 
as  follows : 

"...  That  this  war  is  not  prosecuted  upon  our  part 
in  any  spirit  of  oppression,  nor  for  any  purpose  of  conquest  or 
subjugation,  nor  for  the  purpose  of  overthrowing  or  interfering 
with  the  rights  or  established  institutions  of  those  States,  but 
to  defend  and  maintain  the  supremacy  of  the  Constitution  and 
all  laws  made  in  pursuance  thereof,  and  to  preserve  the  Union 
with  all  the  dignity,  equality,  and  rights  of  the  several  States 
unimpaired;  that  as  soon  as  these  objects  are  accomplished, 
the  war  ought  to  cease. ' ' 

It  passed  the  House,  July  22,  1861,  117  to  2;  and  the 
Senate,  July  26,  30  to  5. 

The  Law  of  1861. — The  act  of  July  13,  1861,  authorized 
the  President,  when  he  should  have  called  out  the  militia 
against  insurgents  claiming,  without  dispute,  to  "act 


430  The  Slavery  Controversy 

under  the  authority  of  any  State  or  States,"  to  proclaim 
the  inhabitants  of  the  insurgent  States  to  be  in  insurrec- 
tion against  the  United  States ;  and  ordered  commercial 
intercourse  with  the  insurgent  States  to  cease.  Accord- 
ingly the  President  issued  a  proclamation,  August  i6th, 
declaring  the  inhabitants  of  Georgia,  South  Carolina, 
Virginia  (except  those  west  of  the  Alleghanies),  North 
Carolina,  Tennessee,  Alabama,  Louisiana,  Texas,  Arkan- 
sas, Mississippi,  and  Florida,  to  be  in  insurrection. 

For  the  blockade  of  1861,  see  Alabama  Claims. 

I.  THEORIES  OF  RECONSTRUCTION. — As  a  summary 
of  the  changes  of  theory,  we  may  say  that  the  war  was 
begun  under  the  theory  of  "restoration,"  and  that  this 
theory  was  persistently  maintained  by  the  Democrats  to 
the  end;  that  the  presidential  theory  was  developed  by 
Lincoln  in  1863,  and  carried  out  by  Johnson  in  1865,  but 
fell  back  under  the  hands  of  the  latter  into  a  modification 
of  the  restoration  theory ;  that  the  Sumner  and  Stevens 
theories  received  no  formal  ratification  from  any  quarter; 
but  that  Congress,  having  advanced  so  far  as  the  Davis- 
Wade  plan  of  1864,  was  pressed  by  the  force  of  contest 
with  the  presidential  theory  into  a  plan  of  its  own  in 
1867,  consisting  of  the  Davis-Wade  plan,  increased  by 
the  suffrage  features  of  the  Sumner  theory,  and  the  whole 
based  on  a  modification  of  the  Stevens  theory  of  the  sus- 
pension of  the  Constitution. 

i.  Restoration. — The  war  began  under  the  influence  of 
the  idea  that  there  was  "not  one  of  these  States  in  which 
there  were  not  ample  numbers  of  Union  men  to  maintain 
a  State  government  after  the  Rebellion  shall  have  been 
put  down."  There  were  some  warnings  to  the  contrary. 

"  It  may  be,"  said  Baker,  of  Oregon,  in  the  Senate,  "  that 
instead  of  finding,  within  a  year,  loyal  States  sending  mem- 
bers to  Congress  and  replacing  their  Senators  upon  this  floor, 
we  may  have  to  reduce  them  to  the  condition  of  Territories, 


Reconstruction — Part  I'  431 

and  send  from  Massachusetts  and  Illinois  governors  to  control 
them ;  and,  if  there  were  need  to  do  so,  I  would  risk  even  the 
stigma  of  being  despotic  and  oppressive  rather  than  risk  the 
perpetuity  of  the  Union  of  these  States." 

But  such  warnings  were  unheeded,  and  the  general  feel- 
ing was  well  represented  by  the  resolutions  of  1861. 
The  actual  shock  of  war,  and  the  evidently  universal 
transfer  of  allegiance  in  the  South  to  the  Confederate 
States  (see  that  title),  at  once  worked  a  change.  In  De- 
cember, 1861,  the  resolutions  of  July  were  again  offered 
in  the  House,  but  were  laid  on  the  table  by  a  vote  of  71 
to  65.  The  same  result  with  increasing  majorities  met 
subsequent  reintroductions  of  the  resolutions.  In  De- 
cember, 1862,  these  resolutions  took  another  shape,  that 
of  a  simple  declaration  that  the  war  was  prosecuted  only 
to  maintain  the  integrity  of  the  Union  and  of  the  States 
as  they  were  at  the  beginning  of  the  war.  In  this  form 
they  were  ruled  out  of  order,  or  laid  on  the  table,  by 
majorities  small  at  first  but  steadily  increasing.  They 
owed  their  defeat  mainly  to  the  fact  that  they  squinted 
at  slavery  and  the  admission  of  West  Virginia:  if  con- 
fined to  the  question  of  restoration,  they  could  as  yet 
hardly  have  been  defeated.  Even  Vallandigham's  reso- 
lutions, long,  cumbrous,  and  containing  the  invidious 
word  "professedly"  in  reference  to  the  original  object 
of  the  war,  were  only  defeated  by  a  vote  of  79  to  50. 
Generally,  however,  Democratic  members  hardly  felt  it 
to  be  necessary  to  defend  their  position  vigorously  until 
reconstruction  began  to  loom  up  plainly  in  1863-4. 
Pendleton's  statement  of  Democratic  views  may  then  be 
taken  as  authoritative. 

"These  acts  of  secession  were  either  valid  or  invalid.  If 
they  are  valid,  they  separated  the  State  from  the  Union.  If 
they  are  invalid,  they  are  void;  they  have  no  effect;  the  State 


43 2  The  Slavery  Controversy 

officers  who  act  upon  them  are  rebels  to  the  Federal  Govern- 
ment; the  States  are  not  destroyed;  their  constitutions  are  not 
abrogated ;  their  officers  are  committing  illegal  acts,  for  which 
they  are  liable  to  punishment;  the  States  have  never  left  the 
Union,  but  so  soon  as  their  officers  shall  perform  their  duties, 
or  other  officers  shall  assume  their  places,  will  again  perform 
the  duties  imposed,  and  enjoy  the  privileges  conferred,  by  the 
Federal  compact,  and  this,  not  by  virtue  of  a  new  ratification 
of  the  Constitution,  nor  a  new  admission  by  the  Federal  Gov- 
ernment, but  by  virtue  of  the  original  ratification,  and  the  con- 
stant, uninterrupted  maintenance  of  position  in  the  Federal 
Union  since  that  date.  Acts  of  secession  are  not  invalid  to 
destroy  the  Union,  and  yet  valid  to  destroy  the  State  govern- 
ments and  the  political  privileges  of  their  citizens." 

This  ground  was  held  thereafter  by  the  Democratic  con- 
ventions of  all  the  States,  and  by  the  national  convention 
of  1868,  but  it  was  unsuccessful.  Indeed,  it  was  worse. 
Nothing  is  more  curious  in  the  congressional  votes  on 
this  question  than  the  manner  in  which  Democratic 
consistency  and  persistency  thwarted  all  propositions  for 
mild  terms  to  the  insurrectionary  States.  The  names  of 
Democrats  and  "radical"  Republicans,  of  Fernando 
Wood  and  Thaddeus  Stevens,  appear  side  by  side  in 
voting  down  the  successive  and  increasingly  severe  propo- 
sitions for  reconstruction,  until,  after  1865,  the  "radical" 
Republicans,  falling  back  a  step,  united  with  the  mod- 
erate Republicans  and  swamped  the  Democrats. 

Kindred  to  this  general  principle  were  the  constant 
demands  of  the  Democrats  for  a  national  convention  of 
States.  They  began  July  15,  1861,  when  Benjamin 
Wood,  of  New  York,  offered  a  resolution  recommending 
such  a  convention,  which  was  tabled  by  a  party  vote  of 
92  to  51;  and  they  continued  until  the  Democratic  na- 
tional convention  of  1864  demanded  "a  cessation  of  hos- 
tilities with  a  view  to  an  ultimate  convention  of  all  the 
States."  Toward  the  end  of  the  war,  and  particularly 


Reconstruction — Part  I  433 

just  before  the  presidential  election  of  1864,  many  South- 
ern authorities  inclined  to  accept  this  scheme,  if  offered 
to  the  seceding  States;  but  they  still  insisted  that  the 
States  were  not  to  be  bound  by  the  action  of  the 
convention. 

Another  kindred  proposition,  offered  in  December, 
1861,  and  several  times  thereafter,  was  to  appoint  ex- 
Presidents  Fillmore  and  Pierce,  Chief  Justice  Taney, 
Edward  Everett,  and  seven  other  commissioners,  to  con- 
fer with  a  like  number  from  the  seceding  States  for  the 
preservation  of  the  Union.  It  was  either  left  uncon- 
sidered  or  tabled. 

In  the  conference  at  Hampton  Roads,  February  2, 
1865,  between  Alex.  H.  Stephens,  R.  M.  T.  Hunter,  John 
A.  Campbell,  President  Lincoln,  and  Secretary  Seward, 
Mr.  Stevens  says  that  he  asked 

"what  position  the  Confederate  States  would  occupy  toward 
the  others,  if  they  were  then  to  abandon  the  war?  Would 
they  be  admitted  to  Congress?  Mr.  Lincoln  very  promptly 
replied  that  his  own  individual  opinion  was  that  they  ought  to 
be.  He  also  thought  they  would  be,  but  he  could  not  enter 
into  any  stipulations  upon  the  subject.  His  own  opinion  was, 
that  when  the  resistance  ceased  and  the  national  authority  was 
recognized,  the  States  would  be  immediately  restored  to  their 
practical  relations  to  the  Union." 

This  statement,  however,  is  opposed  to  the  known  fact 
that  the  President  was  then  fairly  committed  to  the 
presidential  theory  of  reconstruction. 

The  last  attempt  at  "restoration  "  was  the  memoran- 
dum of  April  1 8,  1865,  between  Generals  W.  T.  Sherman 
and  Joseph  E.  Johnston.  It  provided  for  the  disband- 
ment  of  the  Confederate  forces  at  their  State  capitals, 
the  re-establishment  of  the  Federal  courts,  and  "the 
recognition  by  the  executive  of  the  United  States  of  the 

VOL.  II. — 28. 


434  The  Slavery  Controversy 

several  State  governments  on  their  officers  and  legislatures 
taking  the  oath  prescribed  by  the  Constitution  of  the 
United  States;  and,  where  conflicting  State  governments 
have  resulted  from  the  war,  the  legitimacy  of  all  shall  be 
submitted  to  the  Supreme  Court  of  the  United  States." 
The  agreement  was  repudiated  by  President  Johnson, 
and  an  unconditional  surrender  took  its  place,  April  26th. 
2.  The  Presidential  Theory. — President  Lincoln  seems 
to  have  held  from  the  beginning,  that  while,  as  com- 
mander-in-chief,  he  was  bound  to  carry  the  war  into  the 
heart  of  the  seceding  States,  he  was  also  bound,  as  civil 
executive,  to  endeavor  to  restore  civil  relations  with  the 
States  themselves.  His  theory  is  detailed  in  his  procla- 
mation of  December  8,  1863,  and  his  defence  of  it  in  his 
annual  message  of  the  same  date.  The  proclamation,  i, 
offered  amnesty  to  all  but  specified  classes  of  leading 
men ;  2,  declared  that  a  State  government  might  be  re- 
constructed as  soon  as  one  tenth  of  the  voters  of  1860, 
qualified  by  State  laws,  "excluding  all  others,"  should 
take  the  prescribed  oath ' ;  3,  declared  that,  if  such  State 
government  were  republican  in  form,  it  should  "receive 
the  benefits"  of  the  guarantee  clause;  4,  excepted  States 
where  loyal  governments  had  always  been  maintained; 
but,  5,  added  the  caution  that  the  admission  of  Senators 
and  Representatives  was  a  matter  exclusively  "resting 
with  the  two  Houses,  and  not  to  any  extent  with  the 
Executive."  The  proclamation  further  remarked,  that 
"any  provision  which  may  be  adopted  by  such  State 
government  in  relation  to  the  freed  people  of  such  State, 
which  shall  recognize  and  declare  their  permanent  free- 
dom, provide  for  their  education,  and  which  may  yet  be 
consistent,  as  a  temporary  arrangement,  with  their  present 
condition  as  a  laboring,  landless,  homeless  class,  will  not 
be  objected  to  by  the  national  Executive. "  The  message 
says:  "There  must  be  a  test  by  which  to  separate  the 

1  See  its  form  under  Amnesty,  I. 


Reconstruction — Part  I  435 

opposing  elements,  so  as  to  build  only  from  the  sound, 
and  that  test  is  a  sufficiently  liberal  one  which  accepts 
as  sound  whoever  will  make  a  sworn  recantation  of  his 
former  unsoundness. "  The  presidential  programme  thus 
included  but  four  points :  cessation  of  resistance,  the  ap- 
pointment of  a  provisional  governor,  the  taking  of  the 
oath  of  amnesty  by  at  least  one  tenth  of  the  white  voters, 
and  the  formation  of  a  republican  government ;  there  was 
no  negro  suffrage  or  supervision  by  Congress  in  it,  and 
the  only  action  of  Congress  was  to  be  the  separate  de- 
cision of  the  two  Houses  on  the  admission  of  members. 
It  is  impossible  to  see  any  difference  between  this  and 
Johnson's  "policy."  The  features  are  identical.  John- 
son always  declared  that  they  were  the  same,  and  in  his 
speech  of  February  22,  1866,  asserted  that  Lincoln  had 
told  him,  a  year  before  that  time,  that  he  was  "pretty 
nearly  or  quite  done  with  amendments  to  the  Constitu- 
tion," provided  the  Thirteenth  Amendment  were  ratified. 
Seward  and  other  intimate  friends  of  President  Lincoln 
maintained  the  identity  of  the  systems.  General  Grant, 
in  his  testimony  before  the  House  Judiciary  Committee, 
July  18,  1867,  said  that  the  first  of  Johnson's  reconstruc- 
tion proclamations  (for  North  Carolina)  was  the  same, 
and  he  thought  the  same  verbatim,  as  one  which  had  been 
read  to  him  twice  in  a  Cabinet  meeting  before  Lincoln's 
assassination.  We  may  safely  take  the  two  systems  as 
identical,  as  the  "presidential  theory." 

So  long  as  slavery  was  not  a  point  of  attack,  it  is  evi- 
dent that  restoration  and  the  presidential  theory  were 
very  much  the  same  thing,  the  only  new  point  in  the 
latter  being  the  exclusion  of  white  voters  unable  or  un- 
willing to  take  the  oath.  In  this  sense,  Virginia  was  re- 
stored or  reconstructed  from  the  beginning :  the  Pierpont 
government  was  recognized  by  the  President  at  first  as 
the  government  of  all  Virginia,  then  of  the  conquered 
portion  of  Virginia  proper  (after  the  separation  of  West 


436  The  Slavery  Controversy 

Virginia),  and  at  the  close  of  the  war  it  superseded  the 
rebellious  government  of  Virginia,  without  objection 
from  any  quarter.  Nor  did  it  lack  congressional  recog- 
nition, in  both  its  aspects :  Congress  admitted  West  Vir- 
ginia by  virtue  of  the  formal  assent  of  the  "Virginia 
government"  of  Pierpont;  and  the  separate  action  of  the 
two  Houses,  according  to  the  presidential  theory,  was 
illustrated  by  the  refusal  of  the  House  to  admit  Pierpont 
members  after  1863,  while  the  Pierpont  Senators  held 
their  seats,  one  until  1865,  and  the  other  until  his  death, 
in  1864,  when  the  Senate  refused  to  admit  his  successor. 

A  new  feature  came  in  with  the  President's  adoption 
of  an  anti-slavery  policy,  in  September,  1862.  There- 
after, the  presidential  theory  included  the  abolition  of 
slavery,  and  a  recognition  of  the  anti-slavery  laws  and 
proclamations  in  the  amnesty  oath.  In  other  points,  it 
remained  the  same :  no  legislation  by  Congress,  and  sepa- 
rate action  of  the  Houses  on  the  admission  of  members. 
In  this  way,  Louisiana,  Arkansas,  and  Tennessee  were 
reconstructed,  in  1863-5.  The  legality  of  these  govern- 
ments was  always  stoutly  maintained  by  President  Lin- 
coln. In  his  proclamation  of  1864,  hereafter  referred  to, 
in  regard  to  the  Davis-Wade  bill,  he  says  that  he  is  "also 
unprepared  to  declare  that  the  free-State  constitutions 
and  governments  already  adopted  and  installed  in  Arkan- 
sas and  Louisiana  shall  be  set  aside  and  held  for  naught, 
thereby  repelling  and  discouraging,  as  to  further  effort, 
the  loyal  citizens  who  have  set  up  the  same." 

The  counter-proclamation  of  Davis  and  Wade  alleged 
that  an  unsuccessful  expedition  into  Florida  had  the  same 
object,  to  organize  a  presidential  government.  However 
true  that  may  be,  the  operation  of  the  presidential  theory, 
in  its  second  aspect  under  Lincoln,  stopped  with  Vir- 
ginia, Arkansas,  Louisiana,  and  Tennessee.  Even  these 
examples  were  fortified  by  the  separate  action  of  the 
Houses  upon  them :  the  Louisiana  Representatives  were 


Reconstruction — Part  I  437 

admitted  in  February,  1863,  while  the  Senators  were  re- 
fused admission,  as  were  the  Representatives  also  after 
March  4,  1863;  the  Arkansas  Senators  and  Representa- 
tives did  not  apply  for  admission  until  1864,  and  then 
the  temper  of  Congress  had  risen  so  high  that  they  were 
refused ;  the  admission  of  the  Tennessee  Senators  and 
Representatives,  in  July,  1866,  was,  as  is  hereafter  noted, 
the  point  where  the  congressional  theory  superseded  its 
predecessor. 

Congress  adjourned,  March  3,  1865,  until  December 
4th  following;  Lincoln  died  April  15,  1865;  and  Johnson 
succeeded  to  his  theory,  with  far  inferior  prospects  of 
success.  Precedents  were  in  his  favor,  the  admission  of 
West  Virginia,  the  presence  of  Senators  from  Virginia 
1861-5,  of  Representatives  from  Virginia  1861-3,  and  of 
Representatives  from  Louisiana  in  1863;  he  was  sup- 
ported by  Lincoln's  name  and  Cabinet;  and,  above  all, 
he  had  a  clear  field  for  nine  months  before  Congress  could 
meet.  Against  him  were  his  unfortunate  temper,  his  in- 
ability to  temporize,  and  his  controlling  sympathy  with 
non-slaveholding  Southerners.  It  was  certain,  that,  at 
the  first  sign  of  failure  in  the  presidential  theory,  popular 
opinion  would  strike  at  Johnson  far  more  willingly  than 
at  Lincoln,  and  that  Johnson  was  far  less  qualified  than 
Lincoln  to  meet  or  evade  the  attack. 

General  Johnston  surrendered  April  26,  1865,  and  May 
29th  following,  President  Johnson  began  to  put  into  opera- 
tion the  presidential  theory,  accompanying  it  with  a  new 
amnesty  proclamation,1  such  a  measure  being  an  integral 
feature  of  the  plan.  In  each  State,  the  sequence  of 
events  was,  I ,  the  appointment  of  a  provisional  governor ; 
2,  the  summoning  of  a  convention,  composed  of,  and 
voted  for,  by  whites  able  to  take  the  amnesty  oath ;  3, 
the  adoption  of  a  constitution,  or  ordinances,  forbid- 
ding slavery,  repealing  or  declaring  null  and  void  the 

1  See  Amnesty,  II. 


438  The  Slavery  Controversy 

ordinance  of  secession,  prohibiting  persons  in  the  "ex- 
cepted  classes"  from  voting  or  holding  office,  and  repu- 
diating the  rebel  debt;  4,  the  ratification  of  these  by 
popular  vote;  and  5,  the  election  of  legislatures,  State 
governments,  and  members  of  Congress. 

There  seems  to  have  been  absolutely  no  check  upon 
the  action  of  the  conventions,  except  the  President's 
proclamations,  and  telegraphic  information  from  him  that 
their  action  seemed  to  him  satisfactory,  or  the  reverse. 

Excluding  the  States  (Virginia,  Arkansas,  Tennessee, 
and  Louisiana)  already  reconstructed,  there  remained  but 
seven  States.  In  each  of  these,  provisional  governors 
were  appointed  as  follows:  North  Carolina,  Wm.  W. 
Holden,  May  29th;  Mississippi,  William  L.  Sharkey; 
June  I3th;  Texas,  Andrew  J.  Hamilton,  June  i/th, 
Georgia,  James  Johnson,  June  i/th;  Alabama,  Lewis  E. 
Parsons,  June  2ist;  South  Carolina,  Benj.  F.  Perry, 
June  3Oth;  Florida,  William  Marvin,  July  I3th. 

The  first  proclamation  of  the  series,  as  to  North  Caro- 
lina, may  stand  for  all:  its  preamble  recited  that  the 
United  States  guarantee  to  each  State  a  republican  form 
of  government,  that  the  President  is  bound  to  take  care 
that  the  laws  be  faithfully  executed,  that  the  Rebel- 
lion had  deprived  the  State  of  all  civil  government,  and 
that  it  was  now  necessary  and  proper  to  carry  out  the 
guarantee  of  the  United  States  to  North  Carolina.  In 
Mississippi,  Georgia,  and  South  Carolina,  the  late  gover- 
nors attempted  to  convoke  the  legislatures,  and  anticipate 
reconstruction,  but  the  attempts  were  promptly  sup- 
pressed by  the  military  commanders.  The  governments 
of  Virginia,  Louisiana,  Arkansas,  and  Tennessee  were 
left  undisturbed.  In  all  the  others  the  work  of  recon- 
struction was  so  actively  carried  on  during  the  summer 
and  autumn  of  1865,  that,  when  Congress  met  in  Decem- 
ber, claimants  for  seats  in  the  House  and  Senate  were 
ready  from  all  the  seceding  States,  except  Texas.  The 


Reconstruction — Part  I  439 

work  of  reconstruction  was  then  ended,  so  far  as  the 
presidential  theory  could  carry  it;  and,  as  if  to  clinch 
and  fasten  it  permanently,  Secretary  Seward  issued  his 
proclamation,  December  18,  1865,  announcing  the  ratifi- 
cation of  the  Thirteenth  Amendment.  In  its  adoption, 
the  ratifications  of  the  legislatures  of  the  seceding  States 
had  been  essential,  and  it  seemed  as  if  no  one  could  now 
reject  the  presidential  theory,  without  impugning  the 
validity  of  the  amendment. 

3.  The  Stunner  Theory. — Mr.  Sumner  offered  a  series 
of  resolutions  in  the  Senate,  February  n,  1862,  "declara- 
tory of  the  relations  between  the  United  States  and  the 
territory  once  occupied  by  certain  States."  The  pre- 
amble recited  the  action  of  the  several  seceding  States, 
through  their  governments,  in  abjuring  their  duties,  re- 
nouncing their  allegiance,  levying  war  on  the  Govern- 
ment, and  forming  a  new  confederacy.  The  resolutions 
were  nine  in  number,  as  follows:  i,  that  an  ordinance  of 
secession  is  inoperative  and  void  against  the  Constitution, 
but  is  an  abdication  by  the  State  of  its  rights  under  the 
Constitution,  and  thenceforward  the  State,  felo  de  se, 
ceases  to  exist,  and  its  soil  becomes  a  territory,  under  the 
exclusive  jurisdiction  of  Congress;  2,  that  secession  is  a 
usurpation,  and  action  under  it  is  without  legal  support ; 
3,  that  the  suicide  of  a  State  puts  an  end  to  any  peculiar 
institution  upheld  by  the  State's  sole  authority;  4,  that 
slavery  is  such  an  institution;  5,  that  it  is  the  duty  of 
Congress  to  put  a  practical  as  well  as  a  legal  end  to  slav- 
ery ;  6,  that  any  recognition  of  slavery  is  aid  and  comfort 
to  the  Rebellion ;  7,  that  it  is  also  a  denial  of  the  rights 
of  persons  who  have  been  made  free ;  8,  that,  as  the  allegi- 
ance of  all  the  inhabitants  of  the  seceding  States  is  still  due 
to  the  United  States,  the  protection  of  the  United  States 
is  equally  due  to  all  the  inhabitants,  regardless  of  color, 
class,  or  previous  condition  of  servitude ;  9,  that  Congress 
will  proceed  to  establish  republican  forms  of  government 


440  The  Slavery  Controversy 

in  the  "vacated  territory,"  taking  care  to  provide  for 
the  protection  of  all  the  inhabitants.  The  essence  of 
the  resolutions  is  the  idea  of  "State  suicide";  that  no 
Territory  can  be  compelled  to  assume,  and  no  State  can 
be  compelled  to  retain,  the  public  rights  and  duties  of  a 
State  against  its  will;  that,  as  Brownson  expresses  it,  "a 
Territory  by  coming  into  the  Union  becomes  a  State, 
and  a  State  by  going  out  of  the  Union  becomes  a  Terri- 
tory." The  resolutions  were  never  formally  considered 
or  adopted;  but  their  theory  remained,  and  undoubtedly 
colored  to  some  extent  the  final  work  of  reconstruction. 

4.  The  Stevens  Theory. — From  the  outbreak  of  the  Re- 
bellion until  the  end  of  reconstruction  but  two  parties 
consistently  maintained  a  consistent  theory,  the  Demo- 
cratic party  and  Thaddeus  Stevens.  The  Democratic 
theory  has  already  been  given.  The  Stevens  theory  may 
be  briefly  stated  as  the  suspension  of  the  Constitu- 
tion in  any  part  of  the  country  in  which  resistance  to 
its  execution  was  too  strong  to  be  suppressed  by 
peaceful  methods.  He  held  that  the  mere  fact  of  resist- 
ance suspended  the  Constitution  for  the  time;  that  it 
could  not  truly  be  said  that  the  Constitution  and  laws 
were  in  force  where  they  could  not  be  enforced ;  that  the 
termination  of  the  suspension  was  to  be  decided  by  the 
•victorious  party;  that  if  the  Rebellion  were  successful, 
the  suspension  would  evidently  be  permanent,  and  that 
if  the  Rebellion  were  suppressed,  the  suspension  would 
continue  until  the  law-making  and  war-making  power 
should  decide  that  the  resistance  had  been  honestly 
abandoned.  Here  the  theory  shaded  into  the  indefi- 
nite "war-power."  But  it  differed  more  than  it  agreed. 
Republicans  generally  held  that  armies  were  marching 
and  battles  were  fought  and  States  were  reconstruct- 
ed throughout  the  South  by  virtue  of  the  Consti- 
tution and  its  war  power,  and  they  were  forced  to  strain 
the  written  instrument  into  the  most  extraordinary 


Reconstruction — Part  I  441 

shapes,  and  to  take  lines  of  action  which  were  radically 
contradictory.  To  cite  a  single  example:  unless  the 
Pierpont  government  was  the  legal  government  of  Vir- 
ginia in  1861,  West  Virginia  is  not,  and  never  has  been,  a 
State  of  the  Union ;  and  yet,  if  the  Pierpont  government 
was  legal  in  time  of  war,  its  reconstruction  by  Congress 
in  a  time  of  profound  peace  was  unwarranted  by  any  law. 
But  both  these  contradictions  were  accepted.  West  Vir- 
ginia was  retained  as  a  State,  and  its  members  even  voted 
on  the  reconstruction  of  the  parent  State  of  Virginia.  All 
this,  and  countless  other  contradictions,  were  blotted  out 
by  Stevens's  all-embracing  theory.  From  it  he  never 
swerved.  At  the  special  session  of  July,  1861,  he  de- 
clared it  as  follows : 

"  These  rebels,  who  have  disregarded  and  set  at  defiance 
that  instrument,  are,  by  every  rule  of  law,  estopped  from 
pleading  it  against  our  action.  There  must  be  a  party  in 
court  to  plead  it;  and  that  party,  to  be  entitled  to  plead  it, 
must  first  acknowledge  its  supremacy,  or  he  has  no  business  to 
be  in  court  at  all.  Those  who  bring  in  this  plea  here,  in  bar 
of  our  action,  are  in  a  legal  sense  the  advocates  of  rebels,  their 
counsellors  at  law;  they  are  speaking  for  them,  not  for  us, 
who  are  the  plaintiffs  in  the  action.  I  deny  that  they  have 
any  right  to  plead  at  all.  I  deny  that  they  have  any  standing 
in  court." 

For  this  reason  he  voted  for  the  admission  of  West  Vir- 
ginia, while  he  still  considered  the  Richmond  legislature 
the  legislature  of  Virginia,  and  ridiculed  unsparingly  the 
action  of  "the  highly  respectable  but  very  small  number 
of  the  citizens  of  Virginia,  the  people  of  West  Virginia," 
who  had  "assembled  together,  disapproved  the  acts  of 
Virginia,  and  with  the  utmost  self-complacency  called 
themselves  Virginia."  In  the  same  way  he  voted  for 
every  war  measure  without  leaving  any  unpleasant  prece- 
dents for  the  final  work  of  reconstruction.  Throughout 


442  The  Slavery  Controversy 

the  war  his  views  were  always  repudiated  by  Colfax  and 
other  leading  Republicans,  and  he  said  in  1863: 

"  I  know  perfectly  well  that  I  do  not  speak  the  sentiments 
of  this  side  as  a  party.  I  know  that,  for  the  last  fifteen  years, 
I  have  always  been  a  step  ahead  of  the  party  I  have  acted  with 
in  these  matters ;  but  I  have  never  been  so  far  ahead  but  that 
the  members  of  the  party  have  overtaken  me  and  gone  ahead, 
and  they  will  again  overtake  me  before  this  rebellion  is  ended. 
They  will  find  that  they  cannot  execute  the  Constitution  in  the 
seceding  States ;  that  it  is  a  total  nullity  there ;  and  that  this  war 
must  be  carried  on  upon  principles  wholly  independent  of  it." 

Even  in  the  final  process  of  reconstruction  he  took  no 
step  backward.  In  his  theory  the  guarantee  clause  and  the 
other  constitutional  grounds  of  congressional  action  had 
no  place.  Congress  had  omnipotent  power,  because  the 
seceding  States  had  repudiated  the  Constitution.  If  that 
body  chose  to  offer  mild  terms,  so  much  the  better  for 
the  conquered ;  if  harsh,  no  one  had  a  right  to  complain. 
Democratic  votes  aided  him  in  defeating  the  offer  of 
any  terms  until  his  own  party  was  so  near  him  that  he 
could  rejoin  it  with  the  sacrifice  of  little  in  fact  and  no- 
thing in  theory.  This  result  came  about  in  December, 
1865,  when  he  became  the  leader  of  the  joint  committee 
of  fifteen  on  the  rebellious  States;  and  from  that  time 
much  of  the  work  of  reconstruction  was  his  own,  modi- 
fied by  the  restraining  influence  of  his  colleagues.  The 
fundamental  condition  of  negro  suffrage  was  one  of  his 
purposes,  but  he  persistently  advocated  even  harsher 
terms  of  peace.  In  a  speech  at  Lancaster,  Pa.,  in  Sep- 
tember, 1865,  he  proposed  the  confiscation  of  the  estates 
of  rebels  worth  more  than  $10,000  or  200  acres  of  land, 
forty  acres  of  land  to  be  given  to  each  freedman,  and  the 
balance,  estimated  at  $3, 500,000,000,  to  go  toward  pay- 
ing off  the  national  debt.  He  supposed  that  only  one 
tenth  of  the  whites  would  lose  their  property,  while 


Reconstruction — Part  I  443 

nearly  all  Southern  property  would  be  confiscated.  This 
proposition  was  never  formally  considered,  but  it  made 
Stevens  the  incarnation  of  all  evil  in  the  eyes  of  South- 
erners. His  name  and  his  purposes  occur  in  the  debates 
of  all  the  Southern  conventions  of  1865,  and  are  intro- 
duced as  incentives  to  the  prompt  acceptance  of  the 
presidential  policy. 

5.  The  Davis-Wade  Plan. — The  adoption  of  an  anti- 
slavery  policy  during  the  war  made  necessary  the  im- 
position of  some  condition  on  reconstruction ;  and  this 
condition  was  first  stated  in  the  presidential  plan  of  1863, 
in  the  form  of  the  oath  to  support  the  anti-slavery  proc- 
lamations and  laws,  as  well  as  the  Constitution.  But,  if 
any  such  condition  could  be  imposed,  there  was  practi- 
cally no  limit  in  theory  to  the  conditions  which  might  be 
imposed:  there  was  no  middle  ground  between  uncon- 
ditional restoration  and  the  discretion  of  the  conquering 
government.  The  appearance  of  a  condition  in  the  presi- 
dential policy  was  therefore  the  signal  for  the  appearance 
of  a  condition  in  Congress  also.  In  the  President's  pol- 
icy no  security  was  asked  for  the  faithful  execution  of 
reconstruction,  beyond  the  taking  of  the  oath,  the  over- 
sight of  the  President,  and  the  separate  action  of  the 
Houses  in  admitting  members.  To  fill  this  defect,  a  bill 
was  privately  drafted  in  1863,  reported  to  Congress  by 
the  Committee  on  Rebellious  States,  of  which  Henry 
Winter  Davis  and  Benj.  F.  Wade  were  the  leaders,  and 
came  fairly  before  the  House,  March  22,  1864.  By  its 
terms  the  President  was  to  appoint  provisional  governors, 
who  were  to  enroll  the  white  citizens  through  the  aid  of 
United  States  marshals.  When  a  majority  of  these  citi- 
zens in  any  State  should  take  the  oath  of  allegiance,  they 
were  to  hold  a  State  convention,  excluding  from  voting 
or  being  delegates  all  Confederate  office-holders  and  all 
who  had  voluntarily  borne  arms  against  the  United 
States.  The  constitution  was  to  repudiate  the  rebel 


444  The  Slavery  Controversy 

debt,  abolish  slavery,  and  prohibit  the  higher  military 
and  civil  office-holders  of  the  State  and  Confederacy 
from  voting  for  or  serving  as  governors  or  members  of 
the  legislature.  When  this  was  done,  the  provisional 
governor  was  to  notify  the  President;  when  the  assent 
of  Congress  was  obtained,  the  President  was  to  recognize 
the  new  government  by  proclamation ;  and  then  Senators 
and  Representatives  were  to  be  admitted.  It  declared 
forever  free  the  slaves  in  seceding  States,  and  made  the 
holding  of  any  such  person  in  slavery  an  offence  punish- 
able  by  fine  and  imprisonment;  but  there  was  still  no 
attempt  to  introduce  negro  suffrage.  The  bill  was  de- 
fended on  the  ground  that 

"  we  are  now  engaged  in  suppressing  a  military  usurpation  of 
the  authority  of  State  governments,  and  our  success  will  be 
the  overthrow  of  all  semblance  of  government  in  the  rebel 
States.  The  government  of  the  United  States  will  then  be  in 
fact  the  only  government  existing  in  those  States,  and  it  will 
be  charged  to  guarantee  them  republican  governments.  When 
military  opposition  shall  have  been  suppressed,  not  merely 
paralyzed,  driven  into  a  corner,  and  pushed  back,  but  gone, 
then  call  upon  the  people  to  reorganize  in  their  own  way  a  re- 
publican government  in  the  form  that  the  people  of  the  United 
States  can  agree  to,  subject  to  the  conditions  that  we  think 
essential  to  our  permanent  peace,  and  to  prevent  the  revival 
hereafter  of  the  Rebellion." 

Its  basis  was  therefore  the  same  as  that  of  the  final 
congressional  plan:  that  of  a  war  measure  passed,  if 
not  bello  flagrant  e,  at  least  bello  non  cessante.  Its  ad- 
vocates objected  to  the  President's  plan  for  the  reason 
that  the  latter  "proposed  no  guardianship  of  the  United 
States  over  the  reorganization  of  State  governments, 
no  law  to  prescribe  who  shall  vote,  no  civil  functionaries 
to  see  that  the  law  is  faithfully  executed,  no  supervis- 
ing authority  to  control  and  judge  of  the  elections." 


Reconstruction — Part  I  445 

These  defects  the  Davis- Wade  bill  proposed  to  rectify 
by  the  introduction  of  the  local  machinery  of  marshals, 
and  the  final  authority  and  assent  or  rejection  of  Con- 
gress. But  who  or  what  was  to  prevent  reconstructed 
governments,  after  the  admission  of  their  Senators  and 
Representatives,  from  amending  their  constitutions  and 
eliminating  the  conditions  of  reconstruction?  Here 
was  the  weak  point  of  the  bill,  which  Congress  finally 
endeavored  to  strengthen  in  1867  by  negro  suffrage  and 
constitutional  amendment. 

The  bill  was  passed  by  the  House,  May  4th,  by  a  vote 
of  73  to  59,  but  did  not  come  up  in  the  Senate  until  July 
1st.  On  the  last  day  of  the  session  it  was  passed  by  the 
Senate,  but  the  President  refused  to  sign  it  for  the  reason 
that  he  had  not  sufficient  time  to  examine  it.  July  8, 
1864,  he  issued  a  proclamation  explaining  and  defending 
his  reasons  for  not  signing  the  bill.  Messrs.  Davis  and 
Wade  replied  in  a  counter-proclamation  "to  the  sup- 
porters of  the  Government."  They  had  read  the  Presi- 
dent's proclamation  "without  surprise,  but  not  without 
indignation."  They  asserted,  on  the  contrary,  that  the 
substance  of  this  bill  had  been  before  the  President  for 
more  than  a  year  for  consideration ;  that  he  himself  had 
intrigued  to  delay  the  passage  of  the  bill  so  as  to  obtain 
an  excuse  for  refusing  to  sign  it ;  that  Senator  Doolittle, 
of  Wisconsin,  had  written  to  the  Louisiana  authorities 
that  the  House  bill  would  be  held  as  long  as  possible  in 
the  Senate,  and  finally  killed  by  a  pocket  veto ;  that  the 
President's  persistence  in  his  own  plan,  and  his  hostility 
to  that  of  Congress,  were  both  inspired  by  the  desire  to 
use,  if  necessary,  the  electoral  votes  of  Louisiana  and 
Arkansas  to  secure  his  own  election  in  November,  and 
that  an  abortive  military  expedition  into  Florida  had  the 
same  object;  and  they  ask,  "if  those  votes  turn  the  bal- 
ance in  his  favor,  is  it  to  be  supposed  that  his  competitor, 
defeated  by  such  means,  will  acquiesce?  "  In  conclusion 


446  The  Slavery  Controversy 

they  warn  the  President  that  their  support  "is  of  a  cause, 
and  not  of  a  man ;  that  the  authority  of  Congress  is  para- 
mount and  must  be  respected ;  and  that  if  he  wishes  their 
support,  he  must  confine  himself  to  his  executive  duties, 
to  obey  and  execute,  not  make  the  laws,  to  suppress 
armed  rebellion  by  arms,  and  leave  political  reorganiza- 
tion to  Congress." 

In  the  following  session  the  bill  was  again  introduced 
in  the  House,  but  it  was  already  obsolete,  and  was  laid  on 
the  table.  Instead  of  it,  the  bill  of  1865  '  forbade  the 
counting  of  electoral  votes  from  any  of  the  seceding 
States,  for  the  reason  that  their  inhabitants  had  rebelled, 
and  that  the  States  were  "in  such  condition"  that  no 
valid  election  could  be  held.  The  phrase  quoted  was  a 
compromise  between  the  views  of  those  who  wished  to 
except  Louisiana  from  the  list  of  States  excluded,  and  of 
those  who  wished  to  declare  explicitly  that  all  the  States 
(including  Louisiana,  Arkansas,  Tennessee,  and  Virginia) 
were  "still  in  such  state  of  rebellion  "  in  November,  1864. 
Electoral  votes  were  sent  by  Louisiana  and  Tennessee, 
but  were  rejected  under  the  law.  Thus  the  whole  ques- 
tion was  still  left  in  suspension,  and  the  war  ended  with 
no  other  preparation  for  reconstruction  than  the  policy 
which  Lincoln  had  inaugurated,  and  Johnson  was  to 
carry  into  general  effect. 

6.  The  Congressional  Plan. — The  acceptance  of  the 
presidential  policy  by  the  State  conventions  of  Southern 
whites  was  so  swift  that  Northern  Democrats,  before  the 
end  of  July,  1865,  generally  supported  the  whole  scheme 
as  the  best  practical  form  of  "restoration,"  taking  the 
changes  in  State  constitutions  as  the  voluntary  act  of 
the  States,  not  as  conditions  imposed  by  the  President. 
The  resolutions  of  successive  State  conventions  of  1865 
show  constant  change.  Democratic  resolutions  grow 
steadily  stronger  in  their  approval  of  the  presidential 
1  See  Electors,  V. 


Reconstruction — Part  I  447 

policy.  Republican  resolutions  grow  steadily  more  re- 
served in  their  approval  of  the  President  and  his  policy, 
and  steadily  stronger  in  their  approval  of  "impartial 
suffrage  "  as  a  condition  precedent  to  the  reconstruction 
and  recognition  of  seceding  State  governments.  For 
this  change  in  the  Republican  position,  there  was  un- 
doubtedly party  reason.  Stevens  said  frankly  in  1867: 
"White  Union  men  are  in  a  minority  in  each  of  those 
States.  With  them  the  blacks  would  act  in  a  body,  form 
a  majority,  control  the  States,  and  protect  themselves. 
It  would  insure  the  ascendency  of  the  Union  party,  and  I 
believe,  on  my  conscience,  that  on  the  continued  ascen- 
dency of  that  party  depends  the  safety  of  this  great 
nation."  But  this  reason  alone,  however  it  might  have 
controlled  the  policy  of  the  party,  could  never  have 
made  that  policy  a  success :  if  could  never  have  carried 
as  it  did  the  elections  of  1866,  the  very  crisis  of  con- 
gressional reconstruction.  The  controlling  reason  will  be 
found  in  the  constant  irritation  kept  up  by  the  general 
cast  of  the  legislation  in  regard  to  freedmen  by  the 
reconstructed  legislatures  of  1865-6,  supplemented  by 
the  indiscreet,  unconciliating,  and  inflammatory  tone  of 
the  President  himself. 

In  regard  to  marriage  and  testimony  or  standing  in 
court,  most  of  the  Southern  legislation  was  alike.  For- 
mer slaves  who  had  cohabited  as  man  and  wife  were  to 
be  deemed  and  taken  as  married,  but  marriage  between 
the  two  races  was  forbidden  under  penalties.  Negroes 
were  to  sue  and  be  sued  like  whites.  The  testimony  of 
a  negro  was  only  to  be  received  in  cases  where  a  negro 
should  sue  a  white,  where  a  white  had  injured  a  negro, 
or  where  the  rights  of  a  negro  were  in  question,  always 
provided  that  the  testimony  offered  was  essential  to  the 
case.  Contracts  between  blacks  and  whites  were  to  be 
void  unless  put  in  writing  and  witnessed  by  a  white  man. 
A  benevolent  exception  should  be  noticed  in  the  law  of 


448  The  Slavery  Controversy 

Virginia,  that  contracts  between  blacks  and  whites  were 
not  to  be  binding  upon  the  black  unless  put  in  writing 
before  a  magistrate  and  fully  explained  by  him.  The 
criminal  laws  were  generally  fair  and  equal,  except  that 
rape  of  a  white  woman  by  a  negro  was  made  punishable 
by  death.  In  many  minor  points  this  species  of  legisla- 
tion was  no  doubt  objectionable.  Taken  as  a  whole,  and 
considered  as  the  work  of  men  who  had  within  a  year 
been  absolute  masters  of  the  freedmen,  and  who  had 
been  dispossessed  of  their  control  by  war  and  conquest, 
it  must  be  conceded  that  it  exhibits  remarkable  self- 
control,  public  spirit,  and  equity. 

The  case  was  very  different  with  the  vagrancy  and  stay 
laws  passed  by  most  of  the  Southern  legislatures.  We 
have  already  noticed  that  the  proclamation  of  1863  made 
"no  objection  "  to  a  temporary  regulation  of  the  status 
of  the  freedmen,  "as  a  laboring,  landless,  homeless 
class." 

On  this  subject  the  legislation  of  North  Carolina,  Ten- 
nessee, and  Texas  was  comparatively  unobjectionable. 

The  Virginia  act  declared  all  persons  vagrants  who  re- 
fused to  work  for  the  wages  common  and  usual  in  the 
place  where  they  lived,  or  who  broke  a  contract  with  an 
employer,  and  in  the  latter  case  authorized  the  employer 
to  work  the  runaway  an  additional  month,  with  ball  and 
chain,  if  necessary.  The  act  was  revoked  by  General 
Terry,  January  24,  1866,  for  the  reason  that  combinations 
of  employers  were  reducing  wages  below  a  fair  rate,  and 
then  punishing  as  vagrants  the  laborers  who  refused  to 
accept  them. 

The  most  comprehensive  system  was  that  of  Missis- 
sippi, passed  at  various  times  during  the  last  two  weeks 
of  November,  1865.  Negroes  who  were  orphans  or  un- 
supported were  to  be  apprenticed  until  the  ages  of 
twenty-one  for  males  and  eighteen  for  females,  and  the 
masters  were  to  have  power  to  inflict  "moderate  corporal 


Reconstruction — Part  I  449 

chastisement,"  and  to  recapture  fugitives.  Negroes,  or 
whites  habitually  associating  with  negroes,  were  declared 
vagrants  if  they  had  no  lawful  employment,  or  assembled 
themselves  together  unlawfully.  They  were  to  be  arrested 
and  fined,  and,  if  unable  to  pay  the  fine,  were  to  be  hired 
out  to  the  bidder  who  would  pay  the  fine  for  the  shortest 
term  of  service.  The  evidence  of  a  "lawful  employ- 
ment" was  to  be  the  negro's  written  contract  for  labor, 
or  his  license  from  a  mayor  or  police  board  to  do  job 
work.  These,  renewed  annually,  were  to  serve  as  a  pass : 
without  them  the  negro  was  a  self-confessed  vagrant. 
All  the  laws  respecting  crimes  committed  by  "slaves,  free 
negroes,  or  mulattoes"  were  re-enacted,  and  declared  to 
be  in  full  force  and  effect  against  "freedmen,  free  negroes, 
and  mulattoes."  Any  negro  who  "carried  arms  without 
a  license,  committed  riots,  routs,  affrays,  trespasses,  ma- 
licious mischiefs  or  cruel  treatment  to  animals,  seditious 
speeches,  insulting  gestures,  language,  or  acts,  or  assaults 
on  any  person,  or  disturbance  of  the  peace,  or  who  exer- 
cised the  functions  of  a  minister  of  the  gospel  without  a 
license  from  some  regularly  ordained  church,"  was  to  be 
fined,  and  hired  out  if  unable  to  pay.  Any  laborer  who 
should  break  his  contract,  and  leave  his  employer,  was  to 
be  arrested  and  returned  to  his  labor,  and  the  expenses 
of  the  arrest  were  to  be  deducted  from  the  runaway's 
wages.  Any  attempt  to  entice  a  contract  laborer  from 
his  employer  was  made  a  finable  misdemeanor. 

The  fundamental  features  of  the  Mississippi  code,  its 
application  of  the  vagrant  laws  to  recalcitrant  laborers, 
its  hiring  out  of  those  unable  to  pay  fines,  and  its  prohi- 
bition of  the  enticing  away  of  laborers,  were  adopted  by 
Florida,  Alabama,  and  Georgia;  but  none  of  them  had 
by  any  means  so  comprehensive  a  negro  code. 

In  December,  1865,  South  Carolina  adopted  a  vagrant 
code  much  like  that  of  Mississippi,  but  with  some  features 
of  its  own.  Persons  of  color  (defined  as  persons  with 

VOL.  II. — 29. 


45o  The  Slavery  Controversy 

more  than  one  eighth  negro  blood)  were  not  to  pursue 
any  trade,  business,  or  occupation,  other  than  that  of 
husbandry  or  contract  service,  without  paying  a  fee  of 
$100  a  year  if  a  shopkeeper  or  peddler,  or  $10  a  year  if  a 
mechanic,  for  a  license;  and  they  were  not  to  sell  any 
farm  product  without  written  license  to  sell.  It  was 
made  felony  for  any  person  of  color  to  attempt  rape  upon 
a  white  woman ;  for  any  person  under  sentence  of  trans- 
portation from  the  State  to  return  before  the  end  of  his 
term ;  or  for  any  person  to  steal  a  horse,  a  mule,  or  cot- 
ton packed  in  a  bale  ready  for  market.  No  negro  was 
to  enter  the  State  to  reside  there  without  giving  bonds 
for  his  good  behavior  and  support.  The  whole  code 
of  laws  was  revoked  by  General  Sickles,  January  17, 
1866. 

The  Louisiana  law,  in  December,  1865,  required  "agri- 
cultural laborers  "  to  make  written  contracts  for  a  year's 
labor  before  January  loth  in  each  year,  and  forbade  the 
laborer  to  leave  his  place  of  employment  before  the  end 
of  his  time  of  service,  unless  by  consent  of  his  employer, 
or  on  account  of  harsh  treatment  or  breach  of  contract 
by  the  employer.  Refusal  to  work  out  the  time  of  con- 
tract was  to  be  punished  by  forced  labor  on  public  works, 
unless  the  offender  should  consent  to  return  to  his  labor. 
Runaways  from  an  employer  were  declared  vagrants,  and 
were  to  be  hired  out  for  not  more  than  twelve  months,  the 
employer  having  the  preference,  and  the  wages  to  go  to 
the  poor  fund.  An  aggravation  of  the  contrast  between 
the  status  of  the  two  races  was  presented  in  those  States 
in  which  suits  of  the  employer  against  the  laborer  were 
decided  summarily  by  arrest  and  hiring  out :  at  the  same 
time  "stay  laws"  operated  to  postpone  execution  of 
judgment  in  suits  at  law  for  one,  two,  three,  or  more 
years  for  different  fractions  of  the  judgment  debt,  so  that 
a  laborer  had  little  prospect  of  satisfaction  from  a  suit 
against  an  employer. 


Reconstruction — Part  I  451 

Such  legislation  as  this  is  mainly  responsible  for  the 
reconstruction  of  the  seceding  States  by  Congress.  It 
forced  a  very  fair  observer  to  conclude,  in  1865,  that,  if 
they  should  "get  the  troops  away  and  the  States  into 
Congress,  three  fourths  of  the  counties  in  the  State 
[Georgia]  would  vote  for  such  a  penal  code  as  would 
practically  reduce  half  the  negroes  to  slavery  in  less  than 
a  year."  In  the  Northern  States  it  came  to  be  generally 
believed  that  this  was  the  deliberate  Southern  policy; 
and  this  belief  carried  with  it  a  majority  ready  to  support 
Congress  in  any  counteracting  policy  whatever,  no  matter 
how  radical.  Not  that  the  vagrant  laws  worked  any  great 
harm  in  practice :  when  they  were  not  formally  suspended 
by  the  strong  arm  of  military  power,  the  officers  of  the 
Freedmen's  Bureau  (see  that  title)  withheld  from  State 
courts  the  cognizance  of  cases  in  which  freedmen  were 
interested.  They  served,  then,  only  as  an  irritation  ;  and 
the  utter  futility  of  the  irritation  only  makes  its  folly  the 
more  glaring.  And  it  was  accompanied  by  other  irrita- 
tions, smaller,  indeed,  but  perhaps  as  effective.  Almost 
the  first  business  of  the  reconstructed  legislatures,  still 
existing  only  under  military  sufferance,  was  to  pass  acts 
laying  special  taxes,  or  setting  aside  portions  of  the 
State's  income,  for  pensioning  Confederate  soldiers, 
widows,  and  orphans;  to  pass  resolutions  demanding  the 
pardon  of  leading  Confederates ;  and  to  change  the  names 
of  counties  to  honor  their  captured  chieftains.  In  the 
State  conventions,  highly  injudicious  language  had  been 
used  by  a  few  of  the  more  violent  delegates ;  and,  though 
few  of  these  delegates  had  been  warlike  during  the  war, 
their  utterances  were  quotable.  Further,  the  peculiar 
action  of  the  North  Carolina,  South  Carolina,  and  Georgia 
conventions,  which  "repealed"  the  ordinance  of  secesr 
sion,  instead  of  declaring  it  null  and  void,  was  imprudent, 
to  say  the  least.  If  it  is  prudent  to  build  a  bridge  of 
gold  for  a  flying  enemy,  it  is  infinitely  more  advisable  to 


45 2  The  Slavery  Controversy 

avoid  irritating  a  victorious  enemy  who  is  disposed  to  be 
at  peace. 

Before  Congress  met,  in  December,  1865,  the  mass  of 
legislation  above  summarized  had  fairly  taken  shape; 
and,  as  it  seemed  to  look  toward  the  re-establishment  of 
an  imperium  in  imperio,  it  had  already  swung  the  whole 
Republican  party  into  opposition  to  the  presidential 
policy.  The  elections  of  1864  had  given  the  Republicans 
a  majority  of  40  to  n  in  the  Senate,  and  145  to  40  in  the 
House;  and  Southern  vagrant  laws  and  similar  legislation 
had  at  last  brought  this  majority  abreast  of  Stevens  and 
made  him  its  leader,  as  he  remained  until  his  death,  in 
1868.  The  first  step  was  taken  on  the  opening  day  in 
the  House,  when  the  clerk,  McPherson,  in  calling  the 
roll,  declined  to  call  the  names  of  any  of  the  seceding 
States,  even  of  Tennessee,  Louisiana,  and  Virginia.  He 
refused  to  state  his  reasons,  unless  by  desire  of  the 
House.  Immediately  after  the  election  of  a  Speaker, 
Stevens  offered  the  concurrent  resolution  which  contained 
the  essence  of  reconstruction :  that  a  joint  committee  of 
nine  Representatives  and  six  Senators  should  inquire 
into  the  condition  of  the  seceding  States,  and  report 
whether  any  of  them  were  entitled  to  be  represented  in 
either  House;  that,  until  the  committee  should  report 
and  their  report  should  be  finally  acted  on  by  Congress, 
no  member  should  be  received  by  either  House  from  any 
of  said  States ;  and  that  all  papers  relating  to  the  matter 
should  be  referred  to  the  committee  without  debate.  On 
this  pregnant  resolution  he  called  for  the  previous  ques- 
tion ;  debate  was  shut  off,  and  the  resolution  was  carried 
by  a  party  vote. 

This  was  a  declaration  of  war  against  the  presidential 
policy,  under  which  the  two  Houses  were  only  to  decide 
separately  upon  admission  of  members;  and  the  more 
cautious  Senate,  December  I2th,  struck  out  the  last  two 
of  its  three  features.  The  House  agreed,  December 


Reconstruction — Part  I  453 

I4th,  but  pledged  itself  against  any  admissions  until  the 
committee  should  report.  January  8,  1866,  the  House 
further  resolved  that  the  troops  should  not  be  withdrawn 
from  the  seceding  States  until  the  two  Houses  should 
direct  their  withdrawal.  The  chasm  between  the  Presi- 
dent and  the  majority  in  Congress  rapidly  grew  wider. 
February  2Oth,  Stevens  again  brought  up  his  fundamental 
idea  in  a  "concurrent  resolution  concerning  the  insurrec- 
tionary States."  It  resolved,  in  order  to  close  agitation 
and  quiet  the  uncertainty  in  the  South,  that  no  Senator 
or  Representative  should  be  admitted  by  either  House 
until  Congress  should  declare  the  State  entitled  to  repre- 
sentation. This  was  passed  at  once  under  the  previous 
question.  March  2d,  the  Senate  passed  it,  and  the  man- 
ner, though  not  the  exact  method,  of  reconstruction  was 
settled,  so  far  as  Congress  could  then  settle  it. 

It  was  by  this  time  an  open  secret  that  there  was  a 
very  decided  disagreement  between  President  Johnson 
and  the  party  which  had  elected  him.  Had  Lincoln  been 
one  of  the  parties  to  the  disagreement,  there  can  be  no 
doubt  that  an  adjustment  of  ideas  would  have  been 
arranged :  Johnson  preferred  to  declare  war.  The  occa- 
sion was  found,  February  22d,  two  days  after  the  passage 
of  the  definitive  resolution  by  the  House.  A  Washing- 
ton mass-meeting  sent  a  committee  to  the  President  with 
resolutions  approving  his  policy.  In  his  reply  he  passed 
beyond  the  arguments  to  which  he  had  hitherto  confined 
himself  in  public  speeches,  the  necessity  for  conciliation, 
the  impossibility  of  any  withdrawal  from  the  Union,  and 
the  right  of  States  to  representation.  He  now  proceeded 
to  attack  Congress,  as  having  transferred  its  powers  to 
"an  irresponsible  central  directory  "  (the  leaders  of  the 
Republican  caucus);  he  named  Stevens,  Sumner,  and 
Wendell  Phillips  as  the  leading  Northern  disunionists ; 
and  he  even  taunted  his  opponents  with  their  cowardly 
unwillingness  "  to  effect  the  removal  of  the  presidential 


454  The  Slavery  Controversy 

obstacle  otherwise  than  through  the  hands  of  the  assas- 
sin." There  is  no  excuse  for  such  language  in  the  provo- 
cative speeches  of  several  of  the  radical  Republicans  in 
and  out  of  Congress.  By  replying  in  this  fashion,  the 
President  only  played  into  the  hands  of  opponents  who 
never  gave  away  a  point  in  the  game.  He  aimed  at  the 
Stevens  faction,  but  he  only  succeeded  in  alienating  the 
whole  mass  of  the  Republican  representation.  There- 
after, there  was  no  possibility  of  co-operation  between 
the  President  and  this  Congress. 

At  the  beginning  of  the  session  many  amendments  to 
the  Constitution  had  been  proposed,  intended  to  void 
the  rebel  debt,  and  secure  the  rights  of  freedmen,  that  is, 
to  counteract  the  Southern  legislation  of  1865-6.  One 
of  them,  afterward  elaborated  into  section  two  of  the 
Fourteenth  Amendment,  was  passed  by  the  House,  Jan- 
uary 31,  1866,  but  failed  to  receive  a  two-thirds  vote  in 
the  Senate.  The  speech  of  February  22d  not  only 
brought  the  Senate  to  agree  to  the  concurrent  resolu 
tion ;  it  made  constitutional  amendment  possible  as  well. 
April  3Oth,  Stevens  introduced  an  amendment  to  the 
Constitution,  and  a  bill  providing  that  when  this  amend- 
ment should  become  a  part  of  the  Constitution,  any 
seceding  State  which  had  ratified  the  amendment,  and 
altered  its  Constitution  in  conformity  therewith,  should 
be  entitled  to  representation  at  once. 

The  amendment  was  that  which  in  June  became  the 
Fourteenth  Amendment.1  It  differed  from  the  latter  in 
three  essential  points:  I,  it  had  not  the  first  sentence  of 
section  one,  declaring  who  are  "citizens  of  the  United 
States";  2,  section  three  forbade  all  persons  who  had 
voluntarily  taken  part  in  the  Rebellion  from  voting  for 
members  of  Congress  or  for  electors  before  July  4,  1870; 
and  3,  it  had  not  the  first  sentence  of  section  four,  de- 
claring the  validity  of  the  national  debt.  But  the  sub- 

1  See  Constitution. 


Reconstruction — Part  I  455 

stance  of  section  three  of  the  amendment,  as  finally 
adopted,  disqualifying  certain  classes  of  leaders  from 
holding  office,  was  contained  in  a  separate  bill  reported 
by  Stevens  at  the  same  time,  as  an  essential  part  of  the 
whole  plan.  In  the  House  the  amendment  was  passed 
May  loth,  by  a  party  vote,  under  the  previous  ques- 
tion. In  the  Senate  it  was  debated  until  June  8th,  when 
it  was  passed,  having  been  altered  into  its  present  form, 
and  the  substance  of  the  House  disqualifying  bill  having 
been  substituted  for  the  original  third  section.  June 
1 3th,  the  House  concurred  with  the  Senate's  alterations, 
and  the  amendment  was  proposed. 

This  may  be  considered  as  closing  the  first  stage  of  re- 
construction by  Congress.  The  terms  now  offered  to 
the  seceding  States  were  the  ratification  of  the  Four- 
teenth Amendment,  repudiation  of  the  rebel  debt,  dis- 
qualification of  the  specified  classes  of  Confederate  leaders 
until  they  should  be  pardoned  by  Congress,  and  a  grant 
to  Congress  of  power  to  maintain  the  civil  rights  of  the 
freedmen.  There  was  no  effort  to  control  suffrage  within 
the  State ;  only  an  effort  to  induce  the  States  to  grant 
universal  suffrage,  and  thus  increase  their  representation 
in  Congress. 

While  this  perfecting  of  the  first  congressional  plan 
was  going  on,  the  conflict  between  the  President  and 
Congress  had  gradually  become  open  and  bitter.  A  bill 
to  strengthen  the  hands  of  the  officers  of  the  Freedmen's 
Bureau  (see  that  title)  in  resisting  Southern  legislation 
was  passed  and  vetoed ;  and  as  the  second  vote  upon  the 
vetoed  bill  took  place,  in  the  Senate,  February  2 1st,  be- 
fore the  President's  declaration  of  war,  it  did  not  secure 
a  two-thirds  vote.  The  veto  of  the  Civil  Rights  Bill  (see 
that  title)  in  March  met  a  different  fate:  the  bill  was 
passed  at  once  in  both  Houses  by  the  necessary  two-thirds 
vote,  and  became  law.  A  similar  result  took  place  upon 
the  veto  of  a  second  and  still  more  stringent  Freedmen's 


456  The  Slavery  Controversy 

Bureau  bill  in  July;  and,  when  Congress  adjourned,  it 
was  very  certain  that  the  Southern  vagrant  laws  had  as 
yet  no  chance  of  practical  enforcement.  Before  the  ad- 
journment, Tennessee  was  restored  to  representation  by 
joint  resolution,  July  24th,  the  Senate  so  amending  the 
preamble  as  to  state  that  "said  State  can  only  be  restored 
to  its  former  political  relations  in  the  Union  by  consent 
of  the  law-making  power  of  the  United  States."  Evi- 
dently the  President  had  been  so  poor  a  strategist  that 
he  had  only  succeeded  in  putting  himself,  for  the  present, 
outside  of  the  "law-making  power  "  which  was  to  do  the 
work  of  reconstruction.  Everything  depended  on  the 
result  of  the  congressional  elections  of  the  autumn,  which 
were  to  decide  whether  the  two-thirds  Republican  ma- 
jority in  Congress  would  be  continued  after  March  3d 
following. 

As  one  of  the  means  of  preparation  for  the  autumn  cam- 
paign, the  majority  of  the  committee  of  fifteen  presented 
a  report,  June  18,  1866,  with  a  great  mass  of  testimony, 
going  to  show  the  prevalence  of  disloyalty  in  the  seced- 
ing States.  The  report  asserted  that  the  seceding  States 
in  1 860- 1  had  deliberately  abolished  their  State  govern- 
ments and  constitutions,  so  far  as  these  connected  them 
with  the  Union;  had  repudiated  the  Constitution,  and 
renounced  their  representation ;  that  as  the  Constitution 
acted  on  individuals,  not  on  States,  the  people  were  still 
bound  to  obedience  to  the  laws,  though  they  had  abol- 
ished their  State  governments ;  that  the  war  could  not  be 
considered  as  terminated  when  the  people  of  the  seceding 
States  yielded  "an  unwilling  admission  of  the  unwelcome 
fact"  of  their  inability  to  resist  longer;  and  that  it  was 
an  essential  condition  that  such  guarantees  of  future 
security  should  be  given  as  would  be  satisfactory  to  the 
law-making  power,  which,  in  the  law  of  1861,  had  recog- 
nized the  existence  of  rebellion.  This,  it  will  be  seen, 
was  not  quite  the  theory  of  either  Sumner  or  Stevens : 


Reconstruction — Part  I  457 

unlike  the  former,  it  considered  the  States  as  existing, 
though  their  governments  were  in  a  condition  of  sus- 
pended animation;  unlike  the  latter,  it  maintained  the 
continued  existence  and  force  of  the  Constitution  in  the 
seceding  States.  Practically,  however,  it  agreed  with 
both,  in  that  it  made  Congress  the  final  arbiter  of  the 
guarantees  of  peace. 

The  President  and  his  supporters  had  not  spent  the 
winter  in  idleness.  Early  in  the  year  a  "National  Union 
Club"  had  been  formed  in  Washington,  composed  mainly 
of  Republican  supporters  of  the  presidential  policy.  Its 
executive  committee,  June  25th,  issued  a  call  for  a  national 
convention  to  meet  at  Philadelphia,  August  Hth,  to  be 
composed  of  Northern  delegates,  representing  the  Lincoln 
and  Johnson  vote  of  1864,  and  of  Southern  delegates  who 
would  unite  with  the  former  in  supporting  the  presidential 
policy.  July  4th,  the  Democratic  members  of  Congress 
issued  an  address  approving  the  proposed  convention. 
A  request  to  the  members  of  the  Cabinet  for  their  ap- 
proval was  followed  by  the  resignation  of  three  of  them ; 
the  rest  were  as  yet  a  unit  in  support  of  the  President. 

The  convention  met  as  proposed,  John  A.  Dix,  of 
New  York,  being  temporary  chairman,  Senator  Doo- 
little,  of  Wisconsin,  president,  and  Henry  J.  Ray- 
mond, of  New  York  (chairman  of  the  Republican 
National  Committee),  chairman  of  the  committee  on 
resolutions.  The  resolutions  fully  sustained  the  Presi- 
dent and  his  policy.  The  somewhat  theatrical  entrance 
of  the  delegates  to  the  building,  headed  by  the  delegates 
from  Massachusetts  and  South  Carolina,  enabled  its 
opponents  to  give  it  the  nickname  of  the  "arm-in-arm 
convention."  But  it  was  certainly  a  well-contrived 
political  movement,  and  the  first  prospects  of  its  effec- 
tiveness are  shown  by  the  anger  aroused  against  its  sup- 
posed contrivers,  Seward  and  Raymond.  The  latter  was 
expelled  by  the  Republican  National  Committee,  and 


458  The  Slavery  Controversy 

the  former  was  specially  denounced  in  almost  every  Re- 
publican platform. 

With  the  first  prospects  of  success,  however,  the  Presi- 
dent's public  language  became  more  indiscreet  than  ever. 
In  his  answer  to  the  committee  which  brought  him  the 
Philadelphia  resolutions  he  said : 

"  We  have  witnessed  in  one  department  of  the  Government 
every  effort,  as  it  were,  to  prevent  the  restoration  of  peace  and 
harmony  in  the  Union.  We  have  seen  hanging  on  the  verge, 
of  the  Government,  as  it  were,  a  body  called,  or  which  assumes 
to  be,  the  Congress  of  the  United  States,  but  in  fact  a  Con- 
gress of  only  part  of  the  States.  We  have  seen  this  Congress 
assume  and  pretend  to  be  for  the  Union,  when  its  every  step 
and  act  tended  to  perpetuate  disunion,  and  make  a  disruption 
of  the  States  inevitable." 

Indeed,  his  pugnacity  had  so  far  gained  the  upper  hand 
of  his  discretion  that  he  even  gratified  his  congressional 
opponents  by  descending  personally  into  the  arena.  He 
chose  this  most  inopportune  of  all  seasons  for  an  excur- 
sion to  Chicago,  for  the  purpose  of  laying  the  corner- 
stone of  the  Douglas  monument.  Starting  August  28th, 
with  a  large  party,  including  three  of  his  Cabinet,  Gen- 
eral Grant,  Admiral  Farragut,  and  others,  he  made 
speeches  at  various  points  from  New  York  City  to 
Chicago,  and  thence  to  St.  Louis,  September  8th;  and 
the  matter  and  manner  of  his  speeches  grew  worse  from 
the  beginning.  It  was  alleged  that  his  opponents  hired 
men  to  irritate  and  provoke  him  to  indiscretions;  but 
such  a  political  manoeuvre  was  entirely  unnecessary.  An 
extract  from  his  Cleveland  speech  of  September  3d  will 
serve  as  evidence  that  the  President's  own  temper  was 
the  source  of  a  large  part  of  the  scandalous  interchange 
of  vituperation  between  himself  and  his  audiences  which 
disgraced  his  progress : 

"  I  came  here  as  I  was  passing  along,  and  have  been  called 


Reconstruction — Part  I  459 

upon  for  the  purpose  of  exchanging  views,  and  ascertaining, 
if  we  could,  who  was  wrong.  [Cries  of  '  It  's  you.']  Who 
can  come  and  place  his  finger  on  one  pledge  I  ever  violated, 
or  one  principle  I  ever  proved  false  to?  [A  voice,  '  How 
about  New  Orleans?'  Another  voice,  'Hang  Jeff.  Davis.'] 
Hang  Jeff.  Davis,  he  says.  [Cries  of  '  No, '  and  '  Down  with 
him.']  Hang  Jeff.  Davis,  he  says.  [A  voice,  '  Hang  Thad. 
Stevens  and  Wendell  Phillips.']  Hang  Jeff.  Davis.  Why 
don't  you  hang  him?  [Cries  of  'Give  us  the  opportunity.'] 
Have  n't  you  got  the  court?  Have  n't  you  got  the  attorney- 
general?  [A  voice,  '  Who  is  your  chief  justice  who  has  re- 
fused to  sit  upon  the  trial? ']  I  am  not  the  chief  justice.  I 
am  not  the  prosecuting  attorney.  [Cheers.]  I  am  not  the 
jury.  I  will  tell  you  what  I  did  do.  1  called  upon  your  Con- 
gress that  is  trying  to  break  up  the  Government — [cheers, 
mingled  with  oaths  and  hisses.  Great  confusion.  '  Don't  get 
mad,  Andy.']  Well,  I  will  tell  you  who  is  mad.  '  Whom  the 
gods  wish  to  destroy,  they  first  make  mad.'  Did  your  Con- 
gress order  any  of  them  to  be  tried?  [Three  cheers  for  Con- 
gress.] ...  [A  voice,  'Traitor.']  I  wish  I  could  see 
that  man.  I  would  bet  you  now,  that,  if  the  light  fell  on  your 
face,  cowardice  and  treachery  would  be  seen  in  it.  Show 
yourself.  Come  out  here  where  I  can  see  you.  [Shouts  of 
laughter.]." 

The  colloquies  between  the  President  and  his  hearers 
grew  more  unpleasant  as  the  trip  went  on,  but,  nothing 
daunted,  the  President  continued  speaking,  and  playing 
into  the  hands  of  his  opponents  to  the  end. 

July  30,  1866,  the  report  of  the  majority  of  the  recon- 
struction committee  received  an  unexpected  indorsement. 
An  attempt  was  made  on  that  day  to  revise  the  consti- 
tution of  Louisiana  (see  that  State)  by  reassembling  the 
adjourned  convention  of  1864,  in  New  Orleans.  The 
convention's  leaders  are  described  by  the  military  com- 
mander, Sheridan,  as  "intemperate  political  agitators  and 
revolutionary  men,"  whom  he  himself  intended  to  arrest 


460  The  Slavery  Controversy 

on  the  first  overt  act  against  the  public  peace.  But  the 
city  authorities  saved  him  the  trouble,  dispersing  the  con- 
vention "with  fire-arms,  clubs,  and  knives,  in  a  manner," 
says  Sheridan,  "so  unnecessary  and  atrocious  as  to  com- 
pel me  to  say  that  it  was  murder."  About  40  whites 
and  blacks  were  thus  killed,  and  160  wounded.  When 
the  smoke  of  the  congressional  elections  had  cleared 
away,  it  was  found  that  the  Republican  majority  had 
hardly  been  changed  in  numbers:  in  the  next  Congress 
it  would  be  42  to  12  in  the  Senate,  and  143  to  49  in  the 
House.  This  was  more  than  sufficient  to  override  the 
President's  veto,  and  continue  to  keep  the  President  out 
of  reckoning  as  part  of  the  "law-making  power."  In 
personnel  the  new  majority  was  still  more  pronounced 
and  united  than  the  old  majority  in  opposition  to  the 
presidential  policy. 

When  Congress  met  in  December,  1866,  the  majority 
came  as  victors,  not  as  combatants;  and  their  first  and 
natural  impulse  was  to  superadd  punitive  damages. 
Their  first  terms,  of  June,  had  been  rejected:  the  de- 
feated party  was  now  to  pay  the  penalty  of  the  refusal  in 
the  imposition  of  negro  suffrage  upon  reconstruction. 
This  had  always  been  an  essential  feature  of  the  Sumner 
and  Stevens  programmes,  but  now  for  the  first  time  the 
party  majority  was  united  by  stress  of  conflict  in  support 
of  it.  An  effort  was  at  once  made  to  impeach  the  Presi- 
dent, but  it  at  first  was  abortive.1  The  Republican  caucus 
at  once  took  place  as  the  practical  governing  body  of  the 
nation.  It  requested  the  Senate  to  reject  the  appoint- 
ments made  by  the  President  for  political  reasons  during 
the  recess,  and  its  executive  committee  was  directed  to 
prepare  business  for  Congress. 

The  committee  rapidly  reported  several  bills,  which 
were  passed  under  the  previous  question.  I.  The  act  of 
January  22,  1867,  directed  succeeding  Congresses  to  meet 

1  See  Impeachments,  VI. 


Reconstruction — Part  I  461 

at  noon  of  March  4th.  This  was  to  prevent  the  President 
from  enjoying  any  nine  months'  interregnum  in  future. 
2.  The  act  of  February  iQth  directed  the  clerk  of  the 
House  to  make  out  the  roll  of  Representatives  elected  to 
the  next  Congress,  and  to  place  thereon  the  names  of 
only  such  States  as  were  represented  in  the  next  preced- 
ing Congress.  This  was  to  anticipate  the  possible  for- 
mation of  a  pseudo  Congress,  composed  of  Northern 
Democrats  and  Southern  claimants,  which  might  be 
formed  and  recognized  by  the  President.  3.  The  Tenure 
of  Office  Act  limited  the  President's  power  of  removal, 
which  had  been  made  a  political  weapon  during  the  cam- 
paign. 4.  The  advanced  feeling  on  the  subject  of  suffrage 
was  shown  in  the  passage  of  acts  establishing  universal 
suffrage  in  the  District  of  Columbia,  January  8th,  in  the 
Territories,  January  24th,  and  in  the  admission  of  the 
State  of  Nebraska,  February  Qth,  the  first  and  third  being 
passed  over  the  veto.  5.  In  passing  the  army  appropri- 
ation bill,  in  February,  a  section  was  added  which  practi- 
cally took  the  command  of  the  army  from  the  President, 
gave  it  to  General  Grant,  and  made  him  irremovable. 
This  step  was  indefensible  on  any  theory.  All  these 
measures,  however,  were  only  adjuncts  of  the  real  busi- 
ness of  the  session,  the  consummation  of  the  work  of 
reconstruction. 

Between  October,  1866,  and  February,  1867,  the  legis- 
latures of  all  the  seceding  States,  except  Tennessee,  re- 
jected the  Fourteenth  Amendment  by  votes  nearly  or 
quite  unanimous.  This  action  had  a  double  result :  as  a 
final  rejection  of  the  first  terms  of  reconstruction  it  made 
subsequent  terms  more  severe ;  and,  as  it  showed  the  ab- 
solute impossibility  of  obtaining  the  ratification  of  the 
Fourteenth  Amendment  by  three  fourths  of  the  (then) 
thirty-six  States,  while  the  ten  Southern  States  remained 
in  statu  quo,  it  forced  Congress  to  choose  between  the 
presidential  policy  and  negro  suffrage.  So  evidently 


462  The  Slavery  Controversy 

ready  was  Congress  to  make  the  choice,  that,  in  February, 
1867,  an  official  effort,  indorsed  by  the  President,  was 
made  to  induce  the  Southern  legislatures  to  propose  an 
amendment  of  their  own.  It  was  the  Fourteenth  Amend- 
ment without  the  disqualifying  clause,  but  with  a  new 
clause  forbidding  a  State  to  secede,  or  the  Federal  Gov- 
ernment to  eject  a  State  or  deprive  it  of  its  representation 
in  Congress.  The  plan  also  included  the  amendment  of 
each  State  constitution  by  giving  the  right  of  suffrage  to 
all  male  citizens  who  could  read  and  write,  and  owned 
$250  worth  of  taxable  property.  The  amendment  was 
offered  in  the  legislatures  of  Alabama  and  North  Caro- 
lina, but  their  refusal  to  consider  it  put  an  end  to  the 
proposal. 

In  the  meantime,  Congress  had  gone  on  with  its  work. 
December  13,  1866,  Stevens  introduced  a  bill  to  recon- 
struct the  government  of  North  Carolina,  giving  the  right 
of  suffrage  to  males  able  to  read  and  write.  January  3, 
1867,  he  called  up,  in  place  of  the  former,  a  general  re- 
construction bill.  It  was  sent  to  the  reconstruction 
committee,  which  reported,  February  6th,  the  bill  finally 
adopted.  Here  there  was  some  Republican  hesitation. 
Elaine  offered  an  amendment  promising  representation 
on  the  terms  of  June,  1866;  but  this  was  voted  down 
by  Democrats  and  radical  Republicans,  and  the  bill  was 
passed  by  a  vote  of  109  to  55.  In  the  Senate  the  Elaine 
amendment  was  offered  by  Sherman,  and  carried ;  but 
the  House  refused  to  concur,  the  Democrats  and  radical 
Republicans  again  voting  in  company.  The  only  result 
of  this  temporary  Republican  division  was  that  the  ma- 
jority now  reunited,  and  passed  the  bill,  given  below, 
without  the  Elaine  amendment,  and  with  the  far  more 
stringent  fifth  and  sixth  sections,  which  were  not  in  the 
original  bill.  The  final  votes,  February  2Oth,  were  128 
to  46  in  the  House,  and  35  to  7  in  the  Senate. 

7.  First  Reconstruction  Bill. — The  preamble  of  the  "act 


Reconstruction — Part  I  463 

to  provide  for  the  more  efficient  government  of  the  rebel 
States"  recited  that  no  legal  State  governments,  or  ade- 
quate protection  for  life  and  property,  now  existed  in 
those  States,  and  that  it  was  necessary  that  peace  and 
good  order  should  be  enforced  in  them  until  loyal  and  re- 
publican State  governments  could  be  legally  established. 
The  six  sections  were  as  follows:  I.  The  States  were  to 
be  made  subject  to  the  military  authority  of  the  United 
States,  and  divided  into  the  following  districts:  I.,  Vir- 
ginia; II.,  North  and  South  Carolina;  III.,  Georgia, 
Florida,  and  Alabama;  IV.,  Mississippi  and  Arkansas; 
V.,  Louisiana  and  Texas.  2.  The  President  was  to  ap- 
point the  commanding  officer  of  each  district,  not  to  be 
below  the  rank  of  brigadier-general,  and  furnish  him 
sufficient  military  force.  3.  The  commanding  officer  was 
"to  protect  all  persons  in  their  rights  of  person  and  prop- 
erty, to  suppress  insurrection,  disorder,  and  violence," 
either  by  military  commission,  or  by  allowing  local  courts 
to  act;  "and  all  interference,  under  color  of  State  au- 
thority, with  the  exercise  of  military  authority  under  this 
act,  shall  be  null  and  void."  4.  Trials  were  to  be  with- 
out unnecessary  delay ;  punishments  were  not  to  be  cruel 
or  unusual ;  and  sentences  of  military  commissions  were 
to  be  approved  by  the  commanding  officer,  or,  if  they 
involved  death,  by  the  President.  5.  The  people  of  any 
State  might  hold  a  delegate  convention,  elected  by  the 
male  citizens  of  the  State  on  one  year's  residence,  ex- 
cluding only  those  disfranchised  for  participation  in  the 
Rebellion,  or  for  felony  at  common  law;  but  no  person 
excluded  from  holding  office  by  the  proposed  Fourteenth 
Amendment  was  to  vote  for  delegates  or  become  a  dele- 
gate. The  constitution  framed  by  the  convention  was  to 
give  the  elective  franchise  to  those  citizens  who  were 
allowed  to  vote  for  delegates,  and  was  to  be  ratified  by 
a  popular  vote  under  the  same  conditions  of  suffrage. 
When  these  conditions  were  fulfilled,  when  Congress  had 


464  The  Slavery  Controversy 

approved  the  constitution,  when  the  new  legislature  had 
ratified  the  Fourteenth  Amendment,  and  when  that 
amendment  should  become  part  of  the  Constitution,  the 
State  was  to  be  entitled  to  representation  in  Congress. 
6.  Until  thus  reconstructed,  the  civil  governments  of  the 
rebel  States  were  to  be  "deemed  provisional  only,  and  in 
all  respects  subject  to  the  paramount  authority  of  the 
United  States  at  any  time  to  abolish,  modify,  control,  or 
supersede  the  same  ";  and,  "in  all  elections  under  such 
provisional  governments,"  the  only  voters  or  office- 
holders were  to  be  those  entitled  by  this  act  to  vote  or 
hold  office. 

The  bill  was  vetoed  March  2d.  The  message  denied 
the  truth  of  the  preamble ;  protested  against  the  bill  as  a 
needless  and  utterly  unconstitutional  attempt  to  establish 
an  unrestrained  military  despotism  over  part  of  the 
country  in  a  time  of  profound  peace;  and  appealed  to 
Congress  to  admit  loyal  and  qualified  members  from  all 
the  States.  The  bill  was  passed  over  the  veto  the  same 
day,  the  vote  being  a  strictly  party  vote,  except  that 
Senator  Reverdy  Johnson  voted  in  the  affirmative.  It 
may  be  considered  the  second  stage  of  reconstruction. 
Military  government  was  to  be  established,  but  the  re- 
construction was  still  to  be  done  by  the  State,  subject  to 
the  final  approval  of  Congress.  In  order  to  induce  such 
action  by  the  State,  its  citizens  were  given  the  option  of 
a  surrender  of  civil  government  or  voluntary  reconstruc- 
tion ;  for  the  sixth  section,  applying  the  principle  of  the 
bill  to  "all  elections,"  made  reconstruction  ultimately 
inevitable,  if  elections  were  to  take  place.  It  is  certain 
that  several  States  were  moving  in  the  direction  of  volun- 
tary reconstruction  when  the  new  Congress,  which  met 
March  4,  1867,  anticipated  them  and  hastened  the  process. 

8.  Supplementary  Reconstruction  Bill. — March  iQth,  the 
new  Congress  passed  an  act  in  nine  sections,  as  follows : 
i.  Before  September  i,  1867,  district  commanders  were 


Reconstruction — Part  I  465 

to  register  male  citizens  qualified  to  vote  under  the  act, 
taking  from  each  registered  voter  an  oath  that  he  was 
qualified  by  residence  and  age  and  that  he  had  never  en- 
gaged in  rebellion  after  taking  the  oath  of  allegiance  as 
member  of  any  State  legislature  or  of  Congress,  or  as  an 
officer,  executive  or  judicial,  of  the  United  States  or  of 
any  State.  2.  The  district  commander  was  to  hold  an 
election  for  delegates,  equal  in  number  to  the  lower 
house  of  the  State  legislature,  and  apportioned  accord- 
ing to  registration.  3.  The  question  of  holding  a  con- 
vention was  to  be  decided  at  the  same  election.  4.  If  a 
majority  of  registered  voters  consented  to  the  convention, 
the  district  commander  was  to  give  the  delegates  sixty 
days'  notice  of  the  time  and  place  of  meeting;  and  when 
the  constitution  was  framed  he  was  to  give  thirty  days' 
notice  of  an  election  to  ratify  or  reject  it.  5.  When  the 
constitution  was  ratified,  it  was  to  be  sent  to  the  Presi- 
dent, and  by  him  sent  to  Congress.  If  Congress  approved 
it  as  in  conformity  with  the  reconstruction  acts,  the  State 
was  to  be  declared  entitled  to  representation,  and  her 
Senators  and  Representatives  were  to  be  admitted.  6. 
All  elections  were  to  be  by  ballot,  and  false  swearing  was 
to  be  punished  as  perjury.  7.  The  expenses  of  the  com- 
manding officer  were  provided  for.  8.  The  convention 
in  each  State  was  to  have  the  power  of  taxation  to  meet 
its  own  expenses.  9.  A  verbal  mistake  in  the  original 
act  was  corrected. 

This  may  be  considered  the  third  stage  of  reconstruc- 
tion by  Congress.  Its  essential  point  of  difference  was 
that  the  work  of  reconstruction  was  now  taken  out  of  the 
hands  of  the  State,  and  given  to  the  military  commander. 
In  brief,  it  was,  so  far  as  the  State  was  concerned,  in- 
voluntary reconstruction. 

II.  THE  WORK  OF  RECONSTRUCTION. — March  11, 
1867,  the  President  appointed  the  district  commanders; 
and  the  appointees,  Generals  Schofield,  Sickles,  Thomas, 

VOL.  II. — 30. 


466  The  Slavery  Controversy 

Ord,  and  Sheridan,  at  once  took  command  of  the  five 
districts  in  the  order  given.  March  i$th,  Thomas  was 
replaced  by  Pope.  In  all  the  districts  the  first  order  was 
generally  an  announcement  of  the  assumption  of  com- 
mand; and  a  general  direction  to  the  "officers  under  the 
existing  provisional  government  "  of  the  State  to  perform 
their  duties  as  usual  until  otherwise  directed,  though  the 
legislatures  were,  forbidden  to  meet  in  the  following 
autumn.  Then  came  a  notice  that  whipping  and  maim- 
ing in  punishment  of  crime  must  cease,  and  that  the 
militia  must  be  disbanded.  Then  came  the  appointment 
of  boards  of  registration,  and  the  notification  of  the  test 
oath ;  the  election  of  delegates ;  the  meeting  of  the  con- 
vention ;  and  the  framing  of  the  new  State  constitution. 
The  machinery  worked  with  comparatively  little  friction. 
The  whites  were  in  no  condition  for  forcible  resistance; 
and  when  State  treasurers  or  other  officers  attempted  to 
balk  the  work  in  any  way,  they  were  promptly  removed, 
and  replaced  by  civilians  or  military  appointees.  The 
State  of  Mississippi  attempted  to  obtain  from  the  Supreme 
Court  an  injunction  forbidding  the  President  and  General 
Ord  from  executing  the  reconstruction  acts,  but  the  Court 
refused  it,  April  I5th,  on  the  ground  that  it  could  not 
thus  interfere  with  the  purely  political  acts  of  another 
department  of  the  Government.  The  Attorney-General 
gave  an  opinion  which  practically  bound  the  boards  of 
registration  to  take  the  oath  of  an  applicant  as  good  evi- 
dence of  his  right  to  register.  This  and  other  impediments 
to  reconstruction  were  removed  by  the  supplementary 
act  of  July  19,  1867.  It  gave  district  commanders  and 
General  Grant  power  to  suspend,  remove,  and  replace 
any  State  officers  who  should  hinder  reconstruction ;  em- 
powered boards  of  registration  to  take  evidence,  strike 
off  names  fraudulently  entered,  and  add  names  entitled 
to  registry ;  and  provided  that  no  district  commander  or 
his  appointees  should  be  "bound  in  his  action  by  the 


Reconstruction — Part  I  46 7 

opinion  of  any  civil  officer  of  the  United  States."  The 
Alabama  constitution  was  ratified  by  less  than  half  of  the 
registered  vote.  The  supplementary  act  of  March  u, 
1868,  therefore,  provided  that  reconstruction  elections 
should  be  decided  by  a  majority  of  the  votes  actually 
cast. 

In  all  the  States  the  local  work  of  reconstruction  went 
on  rapidly.  The  first  of  the  conventions,  in  Alabama, 
met  November  5,  1867,  and  the  others  followed  at  various 
intervals.  The  constitutions  agreed  in  abolishing  slavery, 
repudiating  the  rebel  debt,  renouncing  the  claim  of  a  right 
to  secede,  declaring  the  ordinance  of  secession  null  and 
void,  giving  the  right  of  suffrage  to  all  male  citizens  over 
twenty-one  years  of  age  on  a  residence  qualification,  and 
prohibiting  the  passage  of  laws  to  abridge  the  privileges 
of  any  class  of  citizens.  Further,  all  the  constitutions, 
except  those  of  North  Carolina,  Florida,  and  Georgia, 
disfranchised  all  who  were  disqualified  from  holding  office 
by  the  (proposed)  Fourteenth  Amendment.  This  dis- 
franchising clause  caused  the  rejection  of  the  constitution 
in  Mississippi,  while  in  Texas  and  Virginia  the  popular 
sentiment  was  so  adverse  that  no  submission  to  popular 
vote  was  ventured  on  as  yet.  In  the  other  States,  as 
rapidly  as  possible,  legislatures  and  governors  were 
elected;  the  former  met  and  ratified  the  Fourteenth 
Amendment;  and  the  latter  were  formally  appointed 
military  governors  until  reconstruction  could  be  com- 
pleted. June  22,  1868,  an  act  of  Congress  approved  the 
constitution  of  Arkansas  as  republican,  and  admitted 
the  State  to  representation  on  the  fundamental  condition 
that  the  grant  of  universal  suffrage  should  never  be  re- 
voked. June  25th,  a  similar  act  admitted  North  Caro- 
lina, South  Carolina,  Florida,  Georgia,  Alabama,  and 
Louisiana.  July  20,  1868,  an  act  to  exclude  electoral 
votes  from  unreconstructed  States  was  passed  over  the 
veto. 


468  The  Slavery  Controversy 

The  Fourteenth  Amendment  thus  secured  the  requisite 
number  of  State  ratifications,  and  an  act  of  June  25, 
1868,  directed  the  President  to  announce  the  fact  by 
proclamation.  July  nth,  he  issued  a  laboriously  am- 
biguous proclamation,  announcing  seriatim  the  reception 
of  "papers  purporting  to  be  resolutions  of  the  legisla- 
tures "  of  the  various  States,  attested  by  the  names  of 
various  persons  "who  therein  sign  themselves"  governor, 
president  of  the  Senate,  etc.;  and  July  2oth,  Secretary 
Seward  issued  an  equally  ambiguous  proclamation,  de- 
tailing the  ratifications  and  the  withdrawals  of  Ohio  and 
New  Jersey,  and  announcing  that,  if  these  withdrawals 
were  invalid,  the  amendment  was  a  part  of  the  Consti- 
tution. Subsequently  he  issued  another  proclamation, 
free  from  ambiguity. 

In  the  presidential  election  of  1868  the  two  parties,  of 
course,  took  opposite  grounds.  The  Republican  plat- 
form congratulated  the  country  on  the  assured  success  of 
the  reconstruction  policy  of  Congress.  The  Democratic 
platform,  while  it  recognized  the  questions  of  slavery  and 
secession  as  settled  by  the  war,  declared  "the  recon- 
struction acts  (so  called)  of  Congress  to  be  usurpations 
and  unconstitutional,  revolutionary  and  void."  This 
declaration  was  emphasized  by  the  Brodhead  letter,  June 
30,  1868,  of  the  Democratic  nominee  for  Vice-President, 
Blair:  "There  is  but  one  way  to  restore  the  Constitution 
and  the  Government,  and  that  is,  for  the  President-elect 
to  declare  these  acts  null  and  void,  compel  the  army  to 
undo  its  usurpations  at  the  South,  disperse  the  carpet- 
bag State  governments,  and  allow  the  white  people  to 
reorganize  their  own  governments,  and  elect  Senators  and 
Representatives."  The  country  was  not  ready  for  such 
a  programme,  and  the  presidential  and  congressional 
elections  of  1868  resulted  in  renewed  Republican 
success. 

Much  suspicion  had  been  felt  by  congressionaljeaders 


Reconstruction — Part  I 

i 

as  to  _the  action_ which  the  Supreme  Court  would  take 
if  the  constitutionality  of  reconstruction  should  come 
legitimately  before  it.  Early  in  1868  such  an  occasion 
seemed  probable  on  an  appeal  from  Mississippi  on  a  writ 
of  habeas  corpus  sued  out  by  one  McArdle,  who  had  been 
convicted  by  a  reconstruction  military  commission.  To 
meet  this  danger,  Stevens  at  first  reported  from  the  re- 
construction committee  a  bill  declaring  that  the  juris- 
diction of  the  Supreme  Court  should  not  extend  to 
reconstruction  legislation.  This  met_|ittle  favor,  and 
instead  of  it  the  act  of  March  27,  1868,  passed  over  the 
veto,  repealed  the  Supreme  Court's  statutory  jurisdiction 
over  appeals  on  habeas  corpus. 

The  question,  however,  could  not  be  kept  down,  and 
in  the  December  term  of  1868,  in  the  case  of  Texas  vs. 
White,  the  Court  decided  in  favor  of  Congress.  During  / 
the  Rebellion  Texas  had  sold  a  number  of  the  bonds/ 
given  her  by  the  United  States  in  1850,'  and  the  new; 
State  government  sought  an  injunction  to  prevent  pay- 
ment to  the  purchasers.  As  Texas  was  still  unrecon- 
structed, the  Court  agreed  that,  if  she  were  not  a  State, 
the  suit  must  be  dismissed,  so  that  the  whole  suit  turned 
on  this  point.  The  Court  held  that  the  Union  was  "an 
indestructible  Union  of  indestructible  States"  ;  that  ordi-  ] 
nances  of  secession  were  null  and  void,  but  that  the 
States  which  passed  them  did  not  cease  to  be  States  of 
the  Union ;  that  their  own  act  of  rebellion  had  suspended 
their  governmental  relations  to  the  United  States;  that 
Congress  must  decide,  as  in  the  Rhode  Island  case,"  what 
government  is  established,  before  it  can  decide  whether 
it  is  republican  or  not ;  that  reconstruction  by  Congress 
was  valid ;  and  that  the  governments  instituted  by  the 
President  were  provisional  only,  to  continue  until  Con- 
gress could  act  in  the  premises.  This  was  not  the  Sum- 
ner,  nor  the  Stevens,  but  the  congressional,  theory.  It 

1  See  Compromises.  8  See  Dorr  Rebellion. 


(47°  The  Slavery  Controversy 

is;  fully  summed  up  )n  an  opinion  of  Attorney-General  E. 
R.  Hoar,  of  May  31,  1869: 

"  The  same  authority  which  recognized  the  existence  of  the 
war  is  the  only  authority  having  the  constitutional  right  to  de- 
termine when,  for  all  purposes,  the  war  has  ceased.  The  act 
of  March  2,  1867,  was  a  legislative  declaration  that  the  war 
which  sprang  from  the  Rebellion  was  not,  to  all  intents  and 
purposes,  ended ;  and  that  it  should  be  held  to  continue  until 
State  governments,  republican  in  form,  and  subordinate  to  the 
Constitution  and  laws,  should  be  established." 

It  is,  therefore,  not  correct  to  say  that  the  precedents  of 
reconstruction  give  Congress  the  right  to  reconstruct  any 
State  government  at  pleasure.  Such  a  reconstruction 
can  only  come  as  the  result  of  a  rebellion  recognized  as 
such  by  the  national  authority,  and  ending  in  the  over- 
throw of  the  State  government  with  the  rebellion.  For 
example,  the  Republican  State  convention  of  Maryland, 
February  27,  1867,  denounced  the  proposed  State  con- 
vention, and  threatened,  if  it  were  persisted  in,  to  appeal 
to  Congress  for  a  reconstruction  of  the  State  government. 
The  threat  was  carried  into  effect,  March  25th,  when  a 
reconstruction  memorial  from  the  Republican  members 
of  the  State  Legislature  was  offered  in  Congress ;  but  Con- 
gress very  consistently  declined  to  interfere. 

Some  additional  work  remained  to  be  done,  for  recon- 
struction still  hung  fire  in  Texas,  Mississippi,  and  Virginia. 
The  act  of  April  10,  1869,  therefore,  authorized  the  Presi- 
dent to  call  elections  in  those  States  for  the  ratification 
or  rejection  of  their  new  State  constitutions,  submitting 
such  sections  as  he  pleased  to  a  separate  vote;  but,  as 
punitive  terms  for  their  delay,  the  new  legislatures  were 
required  to  ratify  the  proposed  Fifteenth  as  well  as  the 
Fourteenth  Amendment.  This  may  be  considered  the 
fourth  and  final  stage  of  reconstruction  by  Congress.  In 
the  States  named,  the  objectionable  clauses  were  voted 


Reconstruction — Part  I  47 l 

down,  the  rest  of  the  constitution  was  ratified,  the  legis- 
latures fulfilled  the  conditions  required,  and  the  States 
were  admitted  by  the  acts  of  January  26th  (Virginia), 
February  23d  (Mississippi),  and  March  30,  1870  (Texas). 
In  the  same  year,  however,  an  attempted  evasion 
of  conditions  by  Georgia  brought  her  into  the  same 
position  as  the  three  States  last  named;  and  it  was  not 
until  January  30,  1871,  that  all  the  States  were  rep- 
resented in  both  Houses  of  Congress,  for  the  first 
time  since  1860.  Reconstruction  by  Congress  was  then 
completed.1 

III.  THE  FAILURES  OF  RECONSTRUCTION. — Prophets 
were  not  wanting  who  predicted  the  speedy  collapse  of 
the  highly  artificial  governmental  edifices  erected  by  Con- 
gress in  the  Southern  States.  Certainly  he  must  have 
been  a  very  short-sighted  person  who  expected  from 
them  an  immediate  and  permanent  establishment  of  the 
freedmen  in  all  the  new  privileges  granted  to  them.  If 
the  weapon  of  suffrage,  which  the  white  race  had  secured 
only  after  centuries  of  arduous  struggle,  could  be  safely 
and  surely  wielded  by  a  race  which  had  hardly  ever 
known  any  condition  other  than  slavery,  we  must  cer- 
tainly rank  slavery,  as  an  educating  process,  higher  than 
we  have  been  accustomed  to  place  it.  And,  on  the  other 
hand,  if  the  pyramid  must  be  supported  on  its  apex  by 
national  power,  it  was  not  to  be  expected  that  the  country 
would  allow  all  other  business  to  lapse,  and  wage  an 
eternal  war  of  irritations  on  behalf  of  a  helpless  race. 
Plainly,  if  Southern  resistance  should  be  open,  the  South 
would  be  reconquered  every  decade;  and  if  Southern 
resistance  was  guarded  but  persistent,  negro  suffrage 
was  destined,  sooner  or  later,  to  at  least  a  temporary 
eclipse. 

In  almost  all  the  States  the  downward  career  of  the 

1  For  the  impeachment  of  President  Johnson,  see  Impeachments,  VI.; 
for  the  Fifteenth  Amendment,  see  Suffrage. 


472  The  Slavery  Controversy 

reconstructed  governments  was  short  and  swift.  Until  the 
negro  legislators  learned  the  machinery  of  politics,  they 
submitted  with  patience  to  the  guidance  of  white  leaders, 
generally  Northern  immigrants,  or  "carpet-baggers,"  and 
these  endeavored  with  considerable  success  to  keep  up  at 
least  a  semblance  of  the  decent  methods  to  which  they 
had  been  accustomed.  But  the  negro  showed  an  aston- 
ishing quickness  in  learning  the  tactics  of  politics,  in 
grasping  the  shell  while  ignoring  the  kernel.  Points  of 
order,  parliamentary  rulings,  filibustering  methods,  the 
means  of  putting  fraud  into  a  fair  legislative  form,  almost 
immediately  became  as  familiar  to  the  negroes  as  to  any 
other  experts  in  legislation ;  and  then  the  State  treasuries 
lay  at  the  mercy  of  a  race  whose  incorrigible  and  notori- 
ous vice,  during  slavery,  had  always  been  theft.  No 
storming  force  ever  made  quicker  work  of  a  captured 
city.  Most  of  the  "carpet-bag  "  leaders  yielded  to  the 
current,  and  took  a  share  of  the  spoils.  The  impover- 
ished treasuries  were  instantly  swept  clean.  The  issue 
of  bonds  was  then  resorted  to,  except  in  States  like  Mis- 
sissippi, whose  bonds  were  unsalable  through  previous 
repudiation;  and  in  this  process  the  lion's  share  fell  to 
the  more  expert  white  leaders.  In  one  State,  South 
Carolina,  the  debt  rose  from  about  $5,000,000  in  1868, 
to  nearly  $30,000,000  in  1872;  and  about  $20,000,000  of 
this  amount  were  issued  by  the  governor  by  .virtue  of  a 
legislative  permission  to  issue  $2,000,000.  In  almost  any 
State,  a  lobby  rich  enough  to  purchase  the  legislators 
could  secure  the  passage  of  an  act  issuing  State  bonds  in 
aid  of  a  railroad,  supplemented  by  a  subsequent  act  re- 
leasing the  State's  lien  on  the  road,  the  whole  making  up 
an  absolute  gift  of  the  money.  But  the  land,  which  must 
ultimately  be  taxed  for  the  payment  of  such  gifts,  re- 
mained in  the  hands  of  the  whites.  Under  universal 
suffrage,  made  harsher  by  a  partial  white  disfranchise- 
ment,  the  whites  were  helpless,  so  long  as  they  observed 


Reconstruction — Part  I  473 

the  forms  of  law;    and  in  the  conflict  of  interests  the 
forms  of  law  went  down. 

At  first  the  struggle  was  mainly  peaceful.  Negro 
voters  were  paid  to  remain  at  home  on  election  day,  or 
were  induced  to  do  so  by  threats  of  loss  of  work ;  negro 
leaders  were  bribed  to  wink  at  false  counting  or  registra- 
tion :  and  when  the  whites  had  thus  carried  the  legisla- 
ture, measures  were  enacted  to  secure  white  control  of 
the  government  in  future.  In  this  manner  the  govern- 
ment fell  into  white  hands  in  Tennessee  in  1869,  in  North 
Carolina  in  1870,  and  in  Texas,  Georgia,  and  Virginia 
from  their  first  reconstruction  in  1870-71.  All  these 
were  States  in  which  the  white  vote  only  needed  union 
to  become  dominant.  Alabama  and  Arkansas  were  much 
more  difficult  States,  but  here  the  reconstructed  govern- 
ments went  down  in  1874,  after  a  struggle  of  some  two 
years,  in  the  course  of  which  actual  violence  became  a 
political  factor.  Four  States  were  now  left,  South  Caro- 
lina, Florida,  Mississippi,  and  Louisiana,  in  which  the 
reconstructed  governments  held  their  ground.  In  ap- 
parent despair  of  other  means,  the  "Mississippi  plan" 
was  begun  in  that  State  in  1875.  It  was  only  an  ampli- 
fication of  the  violent  means  which  had  never  been  left 
entirely  out  of  calculation.  Much  of  its  success  was  no 
doubt  due  to  a  change  of  the  negro  vote.  H.  R.  Revels, 
the  colored  United  States  Senator  of  the  State,  thus 
wrote  to  President  Grant  in  1876: 

"  Since  reconstruction,  the  masses  of  my  people  have  been 
enslaved  in  mind  by  unprincipled  adventurers.  My  people 
are  naturally  Republicans,  but,  as  they  grow  older  in  freedom, 
so  do  they  in  wisdom.  A  great  portion  of  them  have  learned 
that  they  were  being  used  as  tools,  and,  as  in  the  late  election, 
they  determined,  by  casting  their  ballots  against  these  unprin- 
cipled adventurers,  to  overthrow  them." 

On  the  other  hand,  the  evidence  that  violence  was  the 


474  The  Slavery  Controversy 

finally  effective  factor  is  not  only  overwhelming,  but 
confessed.  Bands  of  horsemen,  armed  and  in  uniform, 
attended  and  overawed  negro  meetings;  and  the  roads 
were  picketed  to  prevent  the  free  transit  of  negro  organ- 
izers. Actual  violence  to  the  mass  of  voters  was  un- 
necessary, beyond  a  few  midnight  whippings.  The  negro 
vote  was  helpless  without  its  leaders  and  organizers,  and 
the  Mississippi  plan  was  to  strike  only  at  the  tallest. 
Actual  murders  do  not  seem  to  have  been  numerous,  but 
they  were  tremendous  in  their  effects  from  the  position 
of  the  victims.  There  were  now  left  but  three  States, 
and  in  these  the  Mississippi  plan  was  put  into  practice  in 
1876  with  a  similar  success.  But  in  these  the  "returning 
boards  "  prolonged  the  struggle  beyond  the  election,  and 
threw  the  whole  presidential  election  of  that  year  into 
confusion.1  As  soon  as  President  Hayes  was  seated,  in 
1877,  the  last  vestige  of  the  congressional  scheme  of  re- 
construction disappeared  from  the  surface. 

In  each  State  the  negro  vote  was  practically  suppressed 
after  the  overthrow  of  the  reconstructed  government. 
The  violence  did  not  necessarily  continue  in  active  opera- 
tion; the  negro  vote  was  in  part  cast  and  counted,  and 
negro  local  officers  and  even  Congressmen  were  occasion- 
ally elected.  But  every  one  knew  that  the  negro  vote 
would  be  tolerated  just  far  enough  to  insure  a  permanent 
union  of  the  white  vote,  and  no  farther.  The  results  are 
seen  in  the  significant  smallness  of  the  vote  in  most  of 
the  reconstructed  States.  In  1880,  for  example,  the  con- 
gressional districts  were  each  supposed  to  contain  at  least 
131,400  inhabitants,  which  should  have  furnished  over 
30,000  voters.  Alabama  and  Wisconsin  correspond  very 
closely  in  population,  and  each  has  eight  Congressmen. 
In  1880  the  votes  in  these  districts  were  as  follows:  Ala- 
bama, 18,645;  22,207;  16,319;  I7>644;  11,219;  10,043; 
19,146;  25,573:  Wisconsin,  31,167;  30,875;  29,226; 

1  See  Electoral  Commission,  Florida,  Louisiana.  South  Carolina. 


Reconstruction — Part  I  475 

32,737;  32,926;  38,435;  35.855;  33,894.  It  thus  appears 
that,  on  the  same  census  population,  Wisconsin  furnishes 
265,115  voters,  an  average  of  33,139  to  a  district,  while 
Alabama  has  but  140,796  voters,  an  average  of  17,599  to 
a  district.  It  is  difficult  to  find  more  than  one  control- 
ling explanation  for  this  essential  difference. 

It  must  not  be  understood  that  the  "subversion  of 
the  reconstructed  governments"  included  any  essential 
change  in  the  reconstructed  constitutions.  These  re- 
mained formally  unaltered,  so  far  as  the  fundamental 
conditions  of  readmission  were  concerned,  though  most 
of  the  States  have  revised  their  constitutions  in  non- 
essentials.  The  Supreme  Court  has  decided  that  the 
State,  on  accepting  readmission,  is  estopped  from  deny- 
ing the  validity  of  the  conditions;  and  the  Federal  judi- 
ciary, with  the  enlarged  powers  given  to  it  since  1860, 
would  undoubtedly  make  short  work  with  any  attempt 
to  repudiate  the  conditions  of  reconstruction.  The 
organic  law  is  unchanged ;  the  revolution  has  taken  place 
beneath  the  surface. 

Force  Bills. — At  the  first  indication  of  attack  by  vio- 
lence upon  the  reconstructed  governments,  Congress 
took  steps  to  defeat  the  attempt.  A  bill  for  the  enforce- 
ment of  the  last  two  amendments,  commonly  called  the 
Force  Bill,  was  introduced,  passed  by  strict  party  votes, 
and  became  law  May  31,  1870.  It  made  punishable  by 
fine  and  imprisonment,  or  both,  with  exclusive  cogniz- 
ance to  the  United  States  courts,  the  following  offences: 
hindering  any  person  in  the  performance  of  registration 
or  any  other  qualification  for  voting;  refusing  to  give 
full  effect  to  any  person's  vote;  preventing,  or  confeder- 
ating with  others  to  prevent,  by  force,  threats,  or  bribery, 
any  person  from  qualifying  or  voting;  conspiring  to  go 
in  disguise  upon  the  highway,  or  upon  the  premises  of 
another  with  intent  to  deprive  any  citizen  of  his  consti- 
tutional rights;  personating  other  voters,  voting  or 


476  The  Slavery  Controversy 

registering  illegally,  or  interfering  with  election  officers 
at  congressional  elections  or  the  registration  therefor ;  vio- 
lations of  State  or  Federal  election  laws  by  State  or 
Federal  officials ;  and  violations  of  the  Civil  Rights  Act 
(see  that  title)  of  1866,  which  was  expressly  re-enacted. 

April  20,  1871,  a  far  stronger  Force  Bill  was  enacted.1 
It  was  directed  particularly  at  conspiracies  against  the 
civil  rights  legislation ;  its  second  (or  conspiracy)  section, 
however,  was  decided  to  be  unconstitutional  by  the  Su- 
preme Court,  January  22,  1883.  Its  fourth  section,  pro- 
viding that  such  conspiracies,  when  connived  at  by  the 
State  authorities,  should  be  "deemed  a  rebellion  against 
the  Government  of  the  United  States,"  and  be  sup- 
pressed by  the  President  by  the  suspension  of  the  writ  of 
habeas  corpus  and  the  use  of  the  army  and  navy,  was  to 
expire  at  the  end  of  the  next  session  of  Congress.  In 
May,  1872,  an  attempt  was  made  to  extend  it  for  another 
session.  It  passed  the  Senate,  but  the  House  refused  to 
consider  it.  The  refusal  seems  to  have  been  largely  due 
to  a  belief  in  the  House  that  the  Ku-Klux  disorders  had 
subsided.  It  must  be  noticed  that  this  section  of  the  act 
of  1871  was  really  a  first  step  toward  a  recognition  of  a 
new  rebellion,  and  the  result  would  have  been,  as  before 
stated,  a  new  reconstruction,  if  the  casus  belli  had  not 
been  removed.  This  standing  rule  of  American  consti- 
tutional law,  the  necessary  consequence  of  the  recon- 
struction precedents,  makes  a  singular  paradox :  we  must 
repudiate  State  sovereignty ;  and  yet  we  must  hold  that 
a  State  can  practically  declare  and  wage  war,  be  warred 
against  by  the  nation,  and,  if  conquered,  be  subjected  to 
the  laws  of  war. 

IV.  THE  SUCCESSES  OF  RECONSTRUCTION. — We  have 
described  the  Southern  legislation  of  1866-7.  The  infi- 
nitely milder  and  more  equitable  legislation  which  fol- 
lowed the  successful  seizure  of  power  by  the  white  race 

1  See  Ku-Klux  Klan  ;  Habeas  Corpus. 


Reconstruction — Part  I  477 

in  the  different  States,  in  1869-77,  is  of  itself  a  proof 
that  reconstruction  was,  in  an  essential  point,  a  success. 
It  gave  the  freedmen  a  status  as  men  which,  if  not  alto- 
gether satisfactory,  is  more  than  they  could  have  hoped 
for  in  a  century  under  the  simple  restoration  policy.  If 
the  ballot  is  a  nullity  to  the  negro,  his  other  rights  are 
not ;  and  he  owes  this  to  reconstruction.  Further,  the 
ballot  itself  will  not  always  be  a  nullity.  There  stands 
the  unchanged  and  unchangeable  organic  law  of  the 
States,  waiting  for  the  time  when  the  negro  shall  be 
ready  for  the  right  of  suffrage;  and  we  may  be  sure  that 
the  recognition  of  his  readiness  will  come  far  sooner  and 
more  easily  by  reason  of  the  fact  that  it  has  nothing  to 
fight  against  in  the  State  constitutions. 

We  have  noticed,  also,  the  portentous  reappearance 
of  the  seceding  States,  after  their  reconstruction  by  the 
President,  as  an  imperium  in  imperio.  It  would  have 
been  an  impossibility  for  Southern  representatives  under 
that  regime,  however  honest  their  intentions,  to  divest 
themselves  suddenly  of  the  prejudices  and  traditions  of 
a  lifetime's  training,  and  come  back  in  full  sympathy 
with  the  economic  laws  which  were  thenceforth  to  attach 
to  their  own  section  as  well  as  to  the  rest  of  the  country. 
They  must,  then,  have  returned  as  a  compact  phalanx  of 
irreconcilables,  sure  of  their  ground  at  home,  and  a  per- 
manent source  of  irritation,  sectional  strife,  and  positive 
danger  to  the  rest  of  the  country.  All  this  was  ended  by 
reconstruction.  This  process,  to  speak  simply,  and  per- 
haps brutally,  gave  the  Southern  whites  enough  to  attend 
to  at  home,  until  a  new  generation  should  grow  up  with 
more  sympathy  for  the  new,  and  less  for  the  old.  The 
energies  which  might  have  endangered  the  national  peace 
were  drawn  off  to  a  permanent  local  struggle  for  good 
government  and  security  of  property.  Whatever  may 
be  alleged  on  humanitarian  grounds  against  a  policy 
which  for  a  time  converted  some  of  the  States  into 


The  Slavery  Controversy 

political  hells,  it  must  be  confessed  that  the  policy  was  a 
success,  and  that  it  secured  the  greatest  good  of  the 
greatest  number. 

See,  in  general,  McPherson's  Political  History  of  the 
Rebellion,  and  History  of  the  Reconstruction  (see  index  for 
States,  speeches,  messages,  and  legislation);  2  Williams's 
History  of  the  Negro  Race  ;  Congressional  Globe,  1861-72  ; 
Congressional  Record,  1872-3;  Hurd's  Theory  of  Our 
National  Existence  (index  under  Reconstruction) ;  Apple- 
ton's  Annual  Cyclopedia,  1861-77;  Fisher's  Trial  of  the 
Constitution,  200;  Brownson's  American  Republic,  309; 
McClellan's  Republicanism  in  America  ;  12  Stat.  at  Large, 
255  (Law  of  1861);  International  Review,  Jan.,  1875 
(Guarantee  Clause);  16  Atlantic  Monthly,  238,  17:  237, 
and  18:  761 ;  Cox' 's  Eight  Years  in  Congress,  370;  Gillet's 
Democracy  in  America,  304;  Harris's  Political  Conflict 
in  America,  359;  Pollard's  Lost  Cause  Regained ;  Taylor's 
Destruction  and  Reconstruction;  2  Stephens 's  War  Be- 
tween the  States,  612  (Hampton  Roads  Conference),  806 
(Sherman  -  Johnston  Memorandum);  Raymond's  Life 
and  State  Papers  of  Lincoln,  455,  685;  37  Atlantic 
Monthly,  21 ;  Welles's  Lincoln  and  Seward ;  6-12  Sum- 
ner's  Works;  12  Atlantic  Monthly,  507;  Callender's 
Thaddeus  Stevens,  Commoner ;  4  Appleton's  Annual  Cy- 
clopcedia,  307  (Davis- Wade  Manifesto);  Andrews's  South 
Since  the  War  (1866);  Report  of  the  Joint  Committee  on 
Reconstruction  ;  Report  of  the  Select  Committee  on  the  New 
Orleans  Riot ;  Bout  well's  Speeches ;  Barnes's  3$th  and 
/f.oth  Congresses ;  100  North  American  Review,  540;  The 
Case  of  W.  H.  McArdle  ;  Pike's  The  Prostrate  State  ;  and 
authorities  under  articles  referred  to;  Burgess's  Recon- 
struction and  the  Constitution;  Goldwin  Smith's  The 
United  States,  ch.  v.,  "Rupture  and  Reconstruction"; 
Burgess's  Reconstruction  and  the  Constitution  ;  articles  on 
Reconstruction  in  the  Atlantic  Monthly  for  1901 ;  Elaine's 


Reconstruction — Part  I  479 

Twenty  Years  of  Congress ;  Cox,  S.  S.,  Three  Decades  of 
Federal  Legislation;  Boutwell's  Reminiscences  of  Sixty 
Years ;  Sherman,  John,  Recollections  of  Forty  Years  in 
Senate  and  House ;  Foster  on  The  Constitution,  vol.  i. ; 
Garner's  Reconstruction  in  Mississippi ;  Dunning's  Essays 
on  the  Civil  War  and  Reconstruction  ;  E.  G.  Scott's  Recon- 
struction During  the  Civil  War. 


CHAPTER   XV 

RECONSTRUCTION — PART  II 

THE  FREEDMEN'S  BUREAU. — During  the  years  1861-2 
the  numbers  of  the  fugitive  slaves  within  the  Federal 
lines  increased  with  the  growth  of  the  anti-slavery  feeling 
in  the  Federal  Government  and  army.  Many  of  the 
able-bodied  males  were  finally  provided  for  by  the  or- 
ganization of  colored  troops1 ;  the  aged,  the  young,  the 
women,  and  the  sick  were  the  occasion  of  more  difficulty. 
Wherever  the  Federal  troops  held  post  the  freedmen 
poured  in,  without  money,  resources,  or  any  provision 
for  the  future  further  than  an  implicit  confidence  in  the 
benevolence  and  beneficence  of  the  Federal  Government. 
Before  the  end  of  the  year  1864  the  advance  of  the  armies 
had  freed  three  million  persons,  of  whom  at  least  a  mil- 
lion had  thrown  themselves  helplessly  upon  the  Federal 
Government  for  support.  Attempts  to  employ  some  of 
them  upon  confiscated  or  abandoned  plantations  failed 
through  the  rapacity  and  inhumanity  of  the  agents  em- 
ployed ;  and  in  1863  great  camps  of  freedmen  were  formed 
at  different  points,  where  the  negroes  were  supplied  with 
rations,  compelled  to  work,  and  kept  under  some  degree 
of  oversight.  The  next  year,  1 864,  this  great  responsi- 
bility was  transferred  from  the  War  to  the  Treasury  De- 
partment, but  was  still  a  mere  incident  of  the  military  or 
war  power  of  the  President,  as  commander-in-chief,  and 
was  without  any  regulation  of  law. 

1  See  Abolition,  III. 
480 


Reconstruction — Part  II  481 

A  bill  to  establish  a  bureau  of  emancipation  had  been 
introduced,  January  12,  1863,  but  had  failed  to  pass. 
Another  bill  passed  the  House,  March  i,  1864,  but  failed 
in  the  Senate.  March  3,  1865,  the  first  "Freedmen's 
Bureau  Bill"  became  law.  It  established  a  "bureau  of 
refugees,  freedmen,  and  abandoned  lands"  in  the  War 
Department,  to  continue  for  one  year  after  the  close  of 
the  Rebellion,  under  control  of  a  chief  commissioner;  it 
gave  the  President  authority  to  set  apart  confiscated  or 
abandoned  lands  in  the  South  to  the  use  of  the  Bureau ; 
it  authorized  the  assignment  of  not  more  than  forty  acres 
to  each  refugee  or  freedman ;  it  guaranteed  the  posses- 
sion of  such  lands  to  the  assignees  for  three  years ;  and 
in  general  it  gave  to  the  Bureau  "the  control  of  all  sub- 
jects relating  to  refugees  and  freedmen  from  rebel 
States. ' ' 

The  Bureau  was  organized  almost  entirely  by  officers 
of  the  regular  army,  under  Gen.  O.  O.  Howard,  chief 
commissioner,  and  their  administrative  ability  and  fidelity 
made  the  Bureau's  early  years  very  economical  and 
satisfactory.  February  6,  1866,  a  supplementary  bill 
was  passed,  which  continued  the  Bureau  until  otherwise 
provided  by  law,  authorized  the  issue  of  provisions, 
clothing,  fuel,  and  other  supplies  to  destitute  refugees 
and  freedmen,  made  any  attempt  to  deny  or  hinder  the 
civil  rights  or  immunities  of  freedmen  a  penal  offence,  and 
required  the  President  to  take  military  jurisdiction  of  all 
such  cases.  This  bill  was  vetoed,  February  ipth,  by 
President  Johnson  for  the  reasons,  i,  that  it  abolished 
trial  by  jury  in  the  South,  and  substituted  trial  by  court- 
martial;  2,  that  this  abolition  was  apparently  permanent, 
not  temporary;  3,  that  the  Bureau  was  a  costly  and 
demoralizing  system  of  poor  relief ;  and  4,  that  Congress 
had  no  power  to  apply  the  public  money  to  any  such 
purpose  in  time  of  peace.  The  bill  failed  to  pass  over 
the  veto. 

VOL.  II. — 31 


The  Slavery  Controversy 

The  quarrel  between  the  President  and  the  Republican 
majority  in  Congress  became  open  and  bitter  in  the 
spring  of  1866,  and  about  the  same  time  the  legislation 
of  Southern  legislatures  as  to  freedmen,  during  their 
winter  sessions  of  1865-6,  was  made  public.1  The  result 
was  the  passage  of  the  second  Freedmen's  Bureau  Bill,  in 
July,  1866.  It  corresponded  in  general  intention  to  the 
February  bill,  except  that  it  continued  the  Bureau  for 
two  years  only.  It  was  vetoed,  July  i6th,  on  the  same 
general  grounds  as  above  given,  and  was  passed  the  same 
day  over  the  veto.  The  powers  of  the  Bureau  were  thus 
very  much  enlarged.  Its  chief  commissioner  was  author- 
ized to  use  its  funds  at  discretion,  to  apply  the  property 
of  the  Confederate  States  to  the  education  of  freedmen, 
to  co-operate  with  private  freedmen's  aid  societies,  and 
to  take  military  jurisdiction  of  offences  against  the  civil 
rights  or  immunities  of  freedmen.  In  June,  1868,  the 
Bureau  was  continued  by  law  for  one  year  longer  in  un- 
reconstructed States.  August  3,  1868,  a  bill  was  passed 
over  the  veto  providing  that  General  Howard  should  not 
be  displaced  from  the  commissionership,  and  that  he 
should  withdraw  the  Bureau  from  the  various  States, 
January  I,  1869,  except  as  to  its  educational  work,  which 
did  not  stop  until  July  I,  1870.  The  collection  of  pay 
and  bounties  for  colored  soldiers  and  sailors  was  con- 
tinued until  1872  by  the  Bureau,  when  its  functions  were 
assumed  by  the  usual  channels  of  the  War  Department. 
Total  expenditures  of  the  Freedmen's  Bureau,  March, 
i865-August  30,  1870,  were  reported  at  $15,359,092.27." 

was  introduced  in  the  Senate 


January  29,  1866,  and  passed  February  2d,  by  a  vote  of 
33  to  12.  In  the  House  it  was  passed  March  I3th,  by  a 
vote  of  in  to  38.  An  abstract  of  its  several  sections  is 
as  follows  :(  t.  All  persons  born  in  the  United  States  and 
not  subject  to  any  foreign  power,  excluding  Indians  not 

1  See  Reconstruction.  *  See  Abolition,  Slavery,  Reconstruction. 


Reconstruction — Part  II  483 

taxed,  were  hereby  declared  to  be  citizens  of  the  United 
States,  having  the  same  right  as  white  citizens  in  every 
State  and  Territory  to  sue  and  be  sued,  make  and  enforce 
contracts,  take  and  convey  property,  and  enjoy  all  civil 
rights  whatever.  s*2.  Any  person  who,  under  color  of  any 
State  law,  deprived  any  such  citizen  of  any  civil  rights 
secured  by  this  act  was  made  guilty  of  a  misdemeanor. 
,3.  Cognizance  of  offences  against  the  act  was  entirely 
taken  away  from  State  courts  and  given  to  Federal 
courts.  4.  Officers  of  the  United  States  courts  or  of  the 
Freedmen's  Bureau,  and  special  executive  agents,  were 
charged  with  the  execution  of  the  act.  5.  If  such  officers 
refused  to  execute  the  act,  they  were~made  subject  to 
fine.  6.  Resistance  to  the  officers  subjected  the  offender 
to  fine  and  imprisonment.  7.  This  section  related  to 
fees.  8.  The  President  was  empowered  to  send  officers 
to  any  district  where  offences  against  the  act  were  likely 
to  be  committed.  A).' The  President  was  authorized  to 
use  the  services  of  special  agents,  of  the  army  and  navy, 
or  of  the  militia,  to  enforce  the  act.  10.  An  appeal  was 
permitted  to  the  Supreme  Court. 

There  is  a  curious  likeness,  mutatis  mutandis,  between 
some  of  the  sections  of  the  bill  and  the  Fugitive  Slave 
Law  of  1850. 

The  bill  was  vetoed  March  2/th,  and  again  gassed, 
overjjie  veto,,  in  the  Senate  April  6th,  and  in  the  House 
April  9th.  The  constitutional  objection  to  the  bill  was 
that  the  power  to  pass  it  could  be  found  nowhere  in  the 
Constitution  except  in  the  Thirteenth  Amendment  (pro- 
hibiting slavery),  and  that  this  in  no  way  involved  the 
assumption  by  Congress  of  the  duty  of  protecting  the 
civil  rights  of  citizens,  which  had  always  belonged  to 
the  States;  and,  further,  that,  while  the  decision  in  the 
Dred  Scott  case  stood  unimpeached,  negroes  might  be 
freed  but  could  not  become  citizens.  Various  amend- 
ments were  proposed  in  February  and  March,  1866,  for 


484  The  Slavery  Controversy 


f  overturning  the  Dred  Scott  decision. 
April  3Oth,  after  the  conflict  between  Congress  and  the 
President  had  become  flagrant,  Thaddeus  Stevens,  of 
Pennsylvania,  in  the  House,  reported  from  a  joint  com- 
mittee that  which  was  afterward  modified  into  the  Four- 
teenth Amendment.  Its  first  section  contained  the  gist 
of  the  resolutions  above  referred  to.  It  was  passed  in 
the  Senate  June  8th,  by  a  vote  of  33  to  11,  and  in  the 
House  June  I3th,  by  a  vote  of  138  to  36.' 

Senator  Charles  Sumner,  of  Massachusetts,  was  the 
special  champion  of  an  amendment  to  the  preceding  act 
which  should  prevent  common  carriers,  inn-keepers, 
theatre-managers,  and  officers  or  teachers  of  schools,  from 
distinguishing  blacks  from  whites;  should  prevent  the 
exclusion  of  negroes  from  juries;  and  should  give  Fed- 
eral courts  exclusive  cognizance  of  offences  against  it.  A 
bill  to  this  effect  was  offered  by  him  as  an  amendment  to 
the  amnesty  act  in  1872,"  but  failed  by  a  single  vote,  29 
to  30.  The  same  bill  was  introduced  in  the  House 
December  9,  1872,  and  referred.  April  30,  1874,  shortly 
after  Mr.  Sumner's  death,  it  passed  the  Senate,  but  failed 
in  the  House.  In  February,  1875,  the  bill  finally  passed 
both  Houses,  and  became  a  law  March  ist.* 

AMNESTY.  —  I.  December  8,  1863,  President  Lincoln 
issued  his  first  proclamation  of  amnesty.  It  was  based 
upon  the  President's  constitutional  power  to  grant  re- 
prieves and  pardons  for  offences  against  the  United 
States,  except  in  cases  of  impeachment.  Congress  had 
authorized  such  a  proclamation  by  act  of  July  17,  1862. 
The  proclamation  offered  a  full  pardon  and  restoration 
of  property  rights,  except  in  slaves  and  in  cases  where 
rights  had  accrued  to  third  parties,  to  all,  with  the  ex- 
ceptions hereafter  given,  who  would  take  and  keep  the 
following  oath  : 

'  '  I,  --  ,  do  solemnly  swear,  in  presence  of  Almighty 
1  See  Reconstruction.  *  See  Amnesty.  3  See  Reconstruction. 


Reconstruction — Part  II  485 

God,  that  I  will  henceforth  faithfully  support,  protect,  and  de- 
fend the  Constitution  of  the  United  States,  and  the  Union  of 
the  States  thereunder;  and  that  I  will,  in  like  manner,  abide 
by  and  faithfully  support  all  acts  of  Congress  passed  during 
the  present  Rebellion  with  reference  to  slaves,  so  long  and  so 
far  as  not  repealed,  modified,  or  held  void  by  Congress,  or  by 
decision  of  the  Supreme  Court;  and  that  I  will,  in  like  manner, 
abide  by,  and  faithfully  support  all  proclamations  of  the  Presi- 
dent, made  during  the  existing  Rebellion,  having  reference  to 
slaves,  so  long  and  so  far  as  not  modified  or  declared  void  by 
decision  of  the  Supreme  Court.  So  help  me  God." 

The  following  classes  of  persons  were  excepted :  civil 
or  diplomatic  officers,  army  officers  above  the  rank  of 
colonel,  and  naval  officers  above  the  rank  of  lieutenant, 
in  the  Confederate  service,  all  who  had  left  judicial  sta- 
tions or  seats  in  Congress,  or  had  resigned  commissions 
under  the  United  States,  to  aid  the  Rebellion,  and  all 
who  had  treated  Federal  colored  soldiers  or  their  officers 
otherwise  than  lawfully  as  prisoners  of  war.  March  26, 
1864,  a  supplementary  proclamation  explained  that  the 
first  proclamation  was  not  intended  to  embrace  prisoners 
of  war. 

II.  May  29,  1865,  President  Johnson  issued  a  procla- 
mation offering  amnesty,  as  in  President  Lincoln's  first 
proclamation,  to  those  who  would  take  and  keep  the 
following  oath : 

' '  I, ,  do  solemnly  swear,  or  affirm,  in  presence  of 

Almighty  God,  that  I  will  henceforth  faithfully  support  and 
defend  the  Constitution  of  the  United  States  and  the  Union 
of  the  States  thereunder,  and  that  I  will,  in  like  manner,  abide 
by  and  faithfully  support  all  laws  and  proclamations  which 
have  been  made  during  the  existing  Rebellion  with  reference 
to  the  emancipation  of  slaves.  So  help  me  God." 

In  addition  to  the  classes  named  in  the  proclamation 
of  December  8,  1863,  the  following  classes  were  excepted: 


486  The  Slavery  Controversy 

all  foreign  agents  of  the  Confederate  States,  graduates  of 
West  Point  or  Annapolis  in  the  rebel  army,  governors 
of  States  in  rebellion,  deserters,  privateersmen,  Canada 
raiders,  prisoners  of  war,  persons  worth  over  $20,000, 
and  persons  who  had  already  taken  and  broken  the  oath 
required.  Persons  in  the  excepted  classes  were  to  make 
special  application  for  pardons.  A  bill  to  repeal  the  act 
of  July  17,  1862,  above  mentioned,  was  passed  by  the 
House  December  3,  1866,  and  by  the  Senate  January  7, 
1867,  and  became  a  law  through  the  President's  failure 
to  sign  or  veto  it.  He  preferred  to  treat  the  original  act 
and  the  repealer  as  nullities,  trenching  on  the  President's 
constitutional  pardoning  power. 

III.  September   7,    1867,    President    Johnson    issued 
another  proclamation  of  amnesty.     It  recited  the  sub- 
stance of  former  proclamations,  including  that  of  April  2, 
1866,   declaring  the  Rebellion   at   an  end,   offered    full 
amnesty  to  all  who  would  take  and  keep  the  oath,  above 
given,  substituting  "late"  for  "existing  "  in  describing 
the  Rebellion,  and  excepted  the  following  classes,  "and 
no  others":  the  President,  Vice-President,  and  heads  of 
departments  of  the  Confederate  Government,  its  foreign 
agents,   military  officers  above  the  grade  of  brigadier- 
general,  naval  officers  above  the  grade  of  captain,  gover- 
nors of  States,  all  who  had  unlawfully  treated  prisoners 
of  war,  all  legally  held  in  confinement,  and  all  parties  to 
the  assassination  of  President  Lincoln. 

IV.  July  4,  1868,  by  proclamation,  President  Johnson 
offered  full  pardon  and  amnesty  for  treason,  with  restora- 
tion of  property  rights,  except  as  to   slaves  and  confis- 
cated property,  to  all  except  those  who  might  be  under 
indictment  or  presentment  in  any  Federal  court.      No 
form  of  oath  was  prescribed. 

V.  December  25,    1868,    by  proclamation,    President 
Johnson,  by  virtue  of  the  power  and  authority  in  him 
vested  by  the  Constitution,  proclaimed  and  declared  un- 


Reconstruction — Part  II  487 

conditionally  and  without  reservation,  a  full  pardon  and 
amnesty  for  treason  to  all  who  directly  or  indirectly  par- 
ticipated in  the  Rebellion,  without  the  formality  of  any 
oath,; 

VI.  By  the  third  section  of  the  Fourteenth  Amend- 
ment, which  was  declared  in  force  July  28,  1868,  dis- 
ability to  hold  office  was  imposed  on  those  who  in  higher 
positions  had  engaged  in  rebellion,  with  permission  to 
Congress  to  remove  such  disability.  After  the  disability 
of  many  persons  had  been  removed  by  acts  of  Congress 
applicable  only  to  individual  cases,  the  act  of  May  22, 
1872,  removed  the  political  disability  of  all  persons  ex- 
cept those  who  had  engaged  in  rebellion,  having  been 
members  of  the  36th  or  37th  Congresses,  officers  in  the 
judicial,  military,  or  naval  service  of  the  United  States, 
or  heads  of  departments  or  foreign  ministers  of  the 
United  States.  An  attempt  in  1873  to  make  the  removal 
universal  failed. 

Ku-KLUX  KLAN,  a  secret,  oath-bound  organization, 
otherwise  known  as  "  The  Invisible  Empire,"  "  The 
White  League."  "  The  Knights  of  the  White  Camelia," 
or  by  other  names,  formed  in  the  Southern  States  during 
the  reconstruction  period,  for  the  primary  purpose  of 
preventing  the  negroes,  by  intimidation,  from  voting,  or 
holding  office.  Until  the  abolition  of  slavery  necessity 
compelled  a  rigid  policing  of  the  black  population  by 
official  or  volunteer  guards.2  The  origin  of  the  "  Ku- 
Klux  "  order  was  in  all  probability  a  revival  of  the  old 
slave  police,  at  first  sporadic,  to  counteract  the  organiza- 
tion of  "  Loyal  Leagues,"  or  "Lincoln  Brotherhoods," 
among  the  negroes,  and  afterward  epidemic,  as  the  pro- 
cess of  reconstruction  by  Congress  began  to  take  clear 
form. 

The  various  moving  causes  which  led  to  the  reconstruc- 
tion of  Southern  State  governments  by  Congress  are 

1  See  Reconstruction.  8  See  Slavery. 


488  The  Slavery  Controversy 

elsewhere  given.1  When  the  preparations  for  reconstruc- 
tion had  gone  far  enough  to  make  it  reasonably  certain 
that  negro  suffrage  was  to  be  the  law  in  the  South,  the 
opposition,  hopeless  of  open  revolt,  took  the  shape  of 
this  secret  society.  Attempts  have  been  made  to  date  its 
origin  back  to  1866,  under  the  rule  of  Governor  Brownlow 
in  Tennessee;  but  the  most  probable  date  is  early  in 
1867.  The  constitution  mentioned  below  dates  the  first 
election  of  the  order  in  May,  1867.  The  place  of  its 
origin  is  entirely  unknown,  and  it  was  probably  at  first  a 
congeries  of  associations  in  different  States,  originated 
without  concert  and  from  a  common  motive,  and  finally 
growing  together  and  forming  one  combined  organization 
in  1867.  No  authentic  account  of  its  origin,  founder,  or 
date  has  come  to  light. 

A  "prescript,"  or  constitution,  of  the  order,  discovered 
in  1871,  shows  an  attempt  to  imitate  the  machinery  of 
Masonic  and  other  similar  societies.  The  name  of  the 
order  is  not  given ;  its  place  is  always  filled  by  stars  (**). 
A  local  lodge  is  called  a  "den"  ;  its  master  the  "cyclops," 
and  its  members  ' '  ghouls. ' '  The  county  is  a  "  province, ' ' 
and  is  controlled  by  a  "grand  giant  "  and  four  "gob- 
lins." The  congressional  district  is  a  "dominion,"  con- 
trolled by  a  "grand  titan"  and  six  "furies."  The  State 
is  a  "realm,"  controlled  by  a  "grand  dragon  "  and  eight 
"hydras."  The  whole  "empire"  is  controlled  by  a 
"grand  wizard"  and  ten  "genii."  The  banner  of  the 
society  was  ' '  in  the  form  of  an  isosceles  triangle,  five  feet 
long  and  three  feet  wide  at  the  staff ;  the  material  yellow 
with  a  red  scalloped  border  about  three  inches  in  width ; 
painted  upon  it,  in  black,  a  Draco  volans,  or  flying  dra- 
gon, with  the  motto  Quod  semper,  quod  ubique,  quod  ab 
omnibus"  The  origin,  designs,  mysteries,  and  ritual 
were  never  to  be  written,  but  were  to  be  communicated 
orally.  The  dress  of  the  members,  when  in  regalia,  is 

1  See  Reconstruction. 


Reconstruction — Part  II  489 

not  given,  but  is  known  to  have  been  mainly  a  hood 
covering  the  head,  with  holes  for  the  eyes  and  mouth, 
and  descending  low  upon  the  breast ;  fantastic  or  horrible 
figures  according  to  the  owner's  ingenuity;  in  other  re- 
spects the  ordinary  dress. 

A  more  effective  plan  could  hardly  have  been  devised 
with  which  to  attack  a  race  which  was  superstitious,  emo- 
tional, and  emasculated  by  centuries  of  slavery.  Before 
it  had  been  tried  very  long  the  cry  of  "Ku-Klux"  was 
sufficient  to  break  up  almost  any  negro  meeting  at  night; 
the  suspicion  that  disguised  horsemen  were  abroad  at 
night  was  sufficient  to  keep  every  negro  in  his  own  cabin ; 
and  the  more  virile  and  courageous  of  their  number,  who 
had  become  marked  as  leaders,  were  left  to  whipping, 
maiming,  or  murder  at  the  hands  of  the  "ghouls"  with- 
out any  assistance  from  their  cowering  associates.  By 
day  the  negroes  would  fight,  and  often  did  so ;  by  night 
the  "Ku-Klux"  had  the  field  to  themselves. 

So  long  as  the  attacks  of  the  order  were  confined  to 
the  negroes  there  was  little  need  of  any  means  more  vio- 
lent than  whipping.  A  more  difficult  problem  was  that 
of  the  "carpet-baggers"  and  "scalawags,"  who  with  the 
negroes  made  up  the  Republican  party  in  the  South. 
The  "carpet-baggers"  were  Northern  men,  whose  in- 
terests in  the  South  were  supposed  to  be  limited  to  the 
contents  of  their  carpet-bags;  the  "scalawags"  were 
Southerners  who,  either  from  conviction  or  from  in- 
terest, had  joined  the  Republican  party  and  taken  part 
in  reconstruction.  Neither  of  these  classes  was  easily  to 
be  terrorized,  and  in  their  cases  the  order  very  easily 
drifted  into  murder,  secret  or  open.  Before  the  end  of 
its  third  year  of  existence  the  control  of  the  order  had 
slipped  from  the  hands  of  the  influential  men  who  had  at 
first  been  willing,  through  it,  to  suppress  what  seemed 
to  be  the  dangerous  probabilities  of  negro  suffrage,  and 
had  been  seized  by  the  more  violent  classes  who  used  its 


49°  The  Slavery  Controversy 

machinery  for  the  gratification  of  private  malice,  or  for 
sheer  love  of  murder.  Even  before  the  appointment  of 
the  final  congressional  investigating  committee  in  1871, 
the  order  had  "departed  from  its  political  work,  and  gone 
into  murder  for  hire  and  robbery."  It  had  thus  become 
dangerous  to  the  very  men  who  had  at  first  tacitly  or 
openly  sanctioned  its  existence,  and  open  attempts  to 
suppress  it  were  only  checked  by  a  fear  of  being  classed 
among  the  "scalawags." 

Throughout  the  winter  of  1870-71  the  Ku-Klux  diffi- 
culties in  the  South  were  debated  in  Congress,  and  a 
joint  investigating  committee  was  appointed  by  the  two 
Houses,  March  2ist.  Two  days  afterward  a  message 
from  President  Grant  informed  Congress  that  the  condi- 
tion of  affairs  in  the  South  made  life  and  property  in- 
secure and  interfered  with  the  carrying  of  the  mails  and 
the  collection  of  the  revenue ;  and  asked  that  Congress 
would  enact  measures  to  suppress  the  disorders. 

The  result  was  the  passage  of  the  so-called  "Force 
Bill,"  April  20,  1871.  Its  provisions  were  as  follows: 
I,  it  gave  Federal  courts  cognizance  of  suits  against  any 
one  who  should  deprive  another  of  any  rights,  privileges, 
or  immunities  secured  by  the  Constitution,  "any  law, 
regulation,  custom,  or  usage  of  a  State  to  the  contrary 
notwithstanding";  2,  it  denounced  punishment  by  fine, 
imprisonment,  or  both,  against  any  conspiracy  of  two  or 
more  persons  to  overthrow,  put  down,  destroy,  or  levy 
war  against  the  Government  of  the  United  States,  to  de- 
lay the  execution  of  Federal  laws,  or  to  deter  any  one 
from  voting,  holding  office,  or  acting  as  a  witness  or  juror 
in  a  Federal  court ;  3,  in  case  the  State  authorities  were 
unable  or  unwilling  to  suppress  disorders  intended  to 
deprive  any  class  or  portion  of  the  people  of  their  consti- 
tutional rights,  it  authorized  the  President  to  employ  the 
Federal  land  and  naval  forces  or  militia  to  suppress  the 
disorders,  and  4,  to  suspend  the  privilege  of  the  writ  of 


Reconstruction — Part  II  491 

habeas  corpus  "during  the  continuance  of  such  rebellion 
against  the  United  States,"  the  trial  provision  of  the  act 
of  March  3,  1863,  to  remain  in  force1;  5,  it  authorized 
Federal  judges  to  exclude  from  juries  persons  whom  they 
should  judge  to  be  in  complicity  with  such  conspiracy ; 
6,  it  gave  a  civil  remedy  to  injured  parties  against  persons 
who,  having  knowledge  of  conspiracy  and  power  to  pre- 
vent injuries  being  done,  should  neglect  or  refuse  to  do 
so;  and  7,  it  confirmed  former  civil  rights  legislation. 
The  habeas  corpus  section  was  to  remain  in  force  only 
until  the  end  of  the  next  regular  session. 

October  12,  1871,  President  Grant  issued  a  preliminary 
proclamation  calling  on  members  of  illegal  associations 
in  nine  counties  of  South  Carolina  to  disperse  and  sur- 
render their  arms  and  disguises  within  five  days.  Five 
days  afterward  another  proclamation  issued,  suspending 
the  privileges  of  the  writ  of  habeas  corpus  in  the  counties 
named.  Arrests,  to  the  number  of  two  hundred,  were 
at  once  made,  and  the  more  prominent  persons  implicated 
were  prosecuted  to  conviction.  In  other  parts  of  the 
South  the  organization  was  rapidly  run  to  death,  the 
most  effectual  provision  being  that  which  gave  Federal 
judges  power  to  exclude  suspected  persons  from  juries. 
It  is  probable  that  the  order  was  completely  overthrown 
before  the  end  of  January,  1872. 

The  generic  name  of  "Ku-Klux  Troubles,"  however, 
was  still  applied  to  the  political  and  race  conflicts  which 
still  continued  in  the  South.  The  name  was  made  more 
odious  by  the  report  of  the  joint  congressional  investigat- 
ing committee,  February  19,  1872,  in  thirteen  volumes, 
covering  about  seven  thousand  printed  pages  of  testi- 
mony, which  had  been  taken  during  the  previous  year. 
It  only  lacks  such  a  collation  and  comparison  of  evidence 
as  that  of  the  English  chief  justice  in  the  Tichborne  case 
to  make  it  one  of  the  most  valuable  sources  of  information 

!  See  Habeas  Corpus. 


492  The  Slavery  Controversy 

as  to  the  social  condition  of  the  South  during  the  recon- 
struction period.  The  reports  of  the  majority  and  minority 
of  the  committee  do  not  supply  the  need,  for  both  are 
rather  partisan  than  judicial.  The  majority  (Republican) 
report  considered  the  issue  between  anarchy  and  law  in 
the  Southern  States  fairly  made  up ;  the  minority  (Demo- 
cratic) report,  while  it  did  not  deny  that  "bodies  of  armed 
men  have,  in  several  of  the  States  of  the  South,  been 
guilty  of  the  most  flagrant  crimes,"  held  that  the  perpe- 
trators had  no  political  significance,  nor  any  support  by 
the  body  of  the  people.  The  latter  report  seems  to  have 
been  the  more  nearly  correct  at  the  time  it  was  made, 
but  only  because  the  order  itself  had  already  become 
dangerous  to  both  friends  and  foes.  A  line  of  citations 
from  the  volumes  of  the  report  is  given  below,  from 
which  the  reader  may  learn  the  general  features  and  pur- 
poses of  the  order. 

At  the  following  session  of  Congress,  May  17,  1872,  a 
bill  to  extend  the  Iiabeas  corpus  section  of  the  "  Ku-Klux" 
act  for  another  session  was  taken  up  in  the  Senate  and 
passed.  May  28th,  an  attempt  to  suspend  the  rules  in 
the  House,  so  as  to  consider  the  bill,  was  lost,  two  thirds 
not  voting  for  it ;  and  the  bill  was  not  further  considered 
by  the  House. 

The  attempt  to  check  negro  suffrage  in  the  South  by 
the  irresponsible  action  of  disguised  men  was  practically 
abandoned  after  1871.  From  that  time  such  attempts 
were  confined  to  open  action,  the  presence  of  organized 
parties  of  whites  at  negro  meetings,  and  the  employment 
of  every  engine  of  the  law  by  an  active,  determined,  and 
intelligent  race.  The  results  were  the  overthrow  of  the 
reconstructed  State  government  in  every  Southern  State 
before  1878,'  and  the  formation  of  the  so-called  "solid 
South."  ' 

1  See  Insurrection,  II. ;  and  the  names  of  the  States,  particularly  Missis- 
sippi and  South  Carolina.  s  See  Parties  after  1860. 


Reconstruction — Part  II  493 

IMPEACHMENTS. — The  Constitution  only  provides  that 
the  House  of  Representatives  shall  have  the  sole  power 
of  impeachment  of  the  President,  Vice- President,  and 
"all  civil  officers  of  the  United  States" ;  that  the  Senate 
shall  have  the  sole  power  to  try  impeachments;  that 
judgment,  to  be  given  by  two  thirds  of  the  Senators 
present,  shall  only  involve  removal  from,  and  disqualifi- 
cation to  hold,  office  under  the  United  States ;  that  a 
person  convicted  shall  not  be  pardoned  by  the  President, 
and  shall  still  be  liable  to  indictment  and  punishment  at 
law.  When  the  President  of  the  United  States  is  tried, 
the  Chief  Justice  presides  over  the  Senate. 

The  Constitution  has  not  attempted  to  ascertain  and 
classify  the  offences  which  are  impeachable.  It  has  only 
stated  (Art.  I-,  §  3,  T  7)  tnat  "the  party  convicted  shall, 
nevertheless,  be  liable  and  subject  to  indictment,  trial, 
judgment,  and  punishment  according  to  law"  ;  and  (Art. 
II.,  §  4)  that  "the  President,  Vice-President,  and  all  civil 
officers  of  the  United  States  shall  be  removed  from  office 
on  impeachment  for  and  conviction  of  treason,  bribery, 
or  other  high  crimes  and  misdemeanors." 

From  this  omission  of  specification  two  antagonistic 
opinions  have  arisen.  I.  It  is  held  that  the  power  of 
impeachment  extends  only  to  such  offenders  as  may 
afterward  be  indicted  and  punished  according  to  law; 
that  is,  that  the  House  can  only  impeach,  and  the  Senate 
remove,  for  indictable  offences.  This  would  make  the 
power  of  impeachment  defined  and  circumscribed.  2.  On 
he  contrary,  it  is  held  that  the  phrase  "high  crimes  and 
misdemeanors"  was  intentionally  left  undefined  in  order 
that  the  power  of  impeachment  might  embrace  not  only 
indictable  offences,  but  also  that  wider  and  vaguer  class 
of  political  offences  which  the  ordinary  courts  of  law 
cannot  reach. 

This  would  make  the  power  of  impeachment  under  the 
American  Constitution  closely  similar  to  that  which  has 


494  The  Slavery  Controversy 

been  exercised  under  the  British  Constitution.  It  would 
then  include  all  misdemeanors  which  might  seem  to  a 
majority  of  the  House,  and  to  two  thirds  of  the  Senate, 
so  heinous  or  so  disgraceful  as  to  make  the  offender's 
exclusion  from  office  necessary  to  the  well-being  of  the 
country ;  and  the  punitive  effect  of  the  popular  vote  would 
be  relied  upon  to  deter  a  dominant  party  from  abusing 
the  power  for  selfish  ends.  The  best  results  have  prob- 
ably been  reached  by  leaving  the  question  open  to 
individual  judgment. 

Many  minor  questions  are  still  unsettled,  and  will  prob- 
ably long  remain  so.  I.  It  cannot  be  considered  settled 
that  an  officeholder  may  escape  impeachment  for  acts 
done  while  in  office,  by  resignation,  expulsion,  or  the 
close  of  his  term  of  office.  The  point  was  made,  but  not 
decided,  in  Blount's  case  (see  I.),  and  although  it  pre- 
vented a  two-thirds  majority  in  Belknap's  case  (see  VII.), 
the  power  of  impeachment  was  there  maintained  by  a 
very  decided  majority  of  the  Senators,  including  nearly 
all  the  ablest  lawyers  of  the  Senate.  On  the  one  hand 
is  the  provision  that  only  "civil  officers"  are  liable  to 
impeachment;  and  the  conjunction  of  "removal  from 
office  and  disqualification  "  would  seem  to  imply  that  the 
removal  was  the  first  essential  to  punishment,  and  that 
disqualification  could  not  be  inflicted  where  removal  had 
for  any  reason  become  impossible.  On  the  other  hand 
is  the  obvious  objection,  on  the  score  of  public  policy, 
to  allowing  a  suddenly  discovered  criminal  in  office  to 
escape  impeachment  by  an  aptly  timed  resignation.  2. 
Blount's  case  has  apparently  settled  that  Senators  and 
Representatives  are  not  impeachable;  but  the  decision  in 
that  case  was  made  against  strong  opposition  at  the  time, 
and  has  been  repeatedly  objected  to  since.  In  favor  of 
the  decision  is  the  language  of  the  Constitution ;  it  limits 
the  power  of  impeachment  to  "the  President,  Vice-Presi- 
dent, and  all  civil  officers,"  but  in  other  places  mentions 


Reconstruction — Part  II  495 

members  of  Congress  and  "civil  officers  "  in  distinct 
categories.  Against  it  is  the  decision  by  the  Senate,  in 
January,  1864,  that  an  oath  prescribed  for  "civil  officers," 
by  the  act  of  July  2,  1862,  must  be  taken  by  Senators 
also.  3.  The  power  of  the  Senate  to  arrest  the  accused, 
or  "sequester"  or  suspend  him  from  office,  pending 
judgment  on  the  impeachment,  is  very  doubtful,  and  is 
defended  mainly  by  parallel  with  the  practice  in  English 
impeachments.  The  language  of  some  of  the  framers  of 
the  Constitution  and  their  contemporaries,  however,  goes 
to  show  that  they  considered  the  power  of  suspension  to 
be  in  the  Senate;  and  Senator  Sumner,  on  Johnson's 
trial,  argued  that  the  selection  of  the  Chief  Justice  to 
preside  over  the  trial  of  a  President  was  not  because  the 
Vice-President  was  supposed  to  be  an  interested  party, 
but  because  he  was  presumed  to  be  engaged  in  perform- 
ing the  duties  of  the  President  during  the  necessary 
suspension  of  the  latter  from  office. 

The  power  of  arrest  was  exercised  by  the  Senate, 
though  under  peculiar  circumstances,  in  Blount's  case. 
It  is,  however,  usually  a  power  not  necessary  to  secure 
attendance,  since  the  only  judgment  in  case  of  conviction 
is  the  stigma  of  inability  to  hold  office,  and  punishment 
does  not  extend  to  death  or  deprivation  of  property; 
nor,  in  any  event,  is  the  attendance  of  the  accused 
necessary ;  since  he  may  be  tried,  even  condemned,  in  his 
absence.  (Note  Blount's,  Pickering's,  and  Humphreys's 
cases.)  (See  I.,  II.,  V.)  4.  Can  an  unjust  conviction  on 
impeachment  ever  be  reversed  by  a  subsequent  Congress? 
This  is  a  question  which  has  never  been  raised,  and  the 
now  acknowledged  equity  of  the  whole  line  of  senatorial 
decisions  in  impeachment  cases  gives  strong  reason  for 
hope  that  it  will  never  be  necessary  to  raise  it. 

The  impeachment  cases  in  our  national  history  are 
given  below.  It  has  not  been  considered  necessary  to  go 
into  impeachments  by  State  Legislatures,  but  reference 


496  The  Slavery  Controversy 

is  made  among  the  authorities  to  several  important  cases 
of  this  kind. 

I.  William  Blount. — July  3,  1797,  the  President  sent 
to  Congress  a  number  of  papers  on  the  relations  of  the 
United  States  and   Spain.     Among  them   was  a  letter 
from  United  States  Senator  Blount,  of  Tennessee,  to  an 
Indian  agent  among  the  Cherokees,  from  which  it  ap- 
peared that  Blount  was  engaged  in  a  conspiracy  to  trans- 
fer New  Orleans  and  the  neighboring  territory  from  Spain 
to  Great  Britain,  by  means  of  a  British  fleet  and  a  land 
force  to  be  furnished  by  Blount.     On  receipt  of  notice 
that  the  House  intended  to  impeach  him,  the  Senate  at 
first  put  him  under  $50,000  bonds  to  appear  for  trial,  but 
afterward  expelled  him,  July  9th.     His  sureties  then  sur- 
rendered him  to  the  Senate,  but  he  was  again  released  on 
decreased  bail.     The  whole  of  the  next  session,  Novem- 
ber 13,  1797-July  1 6,  1798,  hardly  sufficed  for  the  pre- 
paration of  the  five  articles  of  impeachment,  which  were 
finally  brought   to  trial,    December  24,    1798.     Blount, 
who  had  in  the  meantime  been  elected  to  the  Senate  of 
his  State,  did  not  appear,  but  his  counsel  plead,  I,  that, 
as  Senator,  he  was  not  a  "civil  officer"  liable  to  impeach- 
ment, and,  2,  that  since  his  explusion  he  was  no  longer 
a  Senator.      The  Senate  sustained  the  first  plea,   and 
Blount  was  acquitted  for  want  of  jurisdiction. 

II.  John  Pickering.  —  March  3,    1803,  the  House  im- 
peached Judge  Pickering,  of  the  Federal  District  Court 
for  the  district  of  New  Hampshire.     The   four  articles 
against  him  charged  him  with  decisions  contrary  to  law, 
and  with  drunkenness  and  profanity  on  the  bench,  and 
were  tried  by  the  Senate  at  once.     Judge  Pickering  did 
not  appear,  but  his  son  attempted  to  prove  his  father's 
insanity.     The  managers  on  the  part  of  the  House,  in 
reply,  maintained  that  the  insanity  was  a  consequence  of 
his  habitual  drunkenness.    He  was  convicted  March  I2th, 
by  a  party  vote,  the  Federalists  voting  in  the  negative, 


Reconstruction — Part  II  497 

and  removed ;  the  further  disqualification  to  hold  office 
was  not  inflicted. 

III.  Samuel  Chase. — One  of  the  ablest  of  the  Federal 
Justices  of  the  Supreme  Court  was  Chase,  of  Maryland, 
appointed  January  27,  1796.  The  practice  of  adding 
disquisitions  on  current  politics  to  charges  to  grand  juries 
was  then  common  with  American  judges,  as  it  had  long 
been  in  Great  Britain ;  and  after  the  downfall  of  the 
Federal  party  in  1801  Chase  kept  up  the  practice  with  a 
bitterness  and  ability  equally  displeasing  to  the  dominant 
party.  In  the  House,  January  5,  1804,  Randolph  ob- 
tained a  committee  to  investigate  Chase's  official  conduct ; 
and  on  their  report  Chase  was  impeached,  November  30, 
1804,  and  Randolph  was  appointed  chief  manager.  The 
articles  of  impeachment  were  presented  to  the  Senate,  De- 
cember 7,  1804,  and  the  trial  was  begun  January  2,  1805. 
There  were  eight  articles:  I,  for  arbitrary  and  unjust 
conduct  in  the  trial  of  John  Fries  for  high  treason,  in 
April,  1800,  in  refusing  to  allow  the  prisoner's  counsel  to 
argue  various  law  points,  and  in  announcing  his  opinion 
as  already  formed,  so  that  the  prisoner's  counsel  threw 
up  the  case;  2,  for  refusing  to  excuse  a  juror  who  had 
prejudged  the  guilt  of  J.  T.  Callender,  in  a  trial  under 
the  Sedition  Law,  in  May,  1800,  at  Richmond;  3,  for 
refusing  to  allow  one  of  Callender's  witnesses  to  testify ; 
4,  for  interrupting  and  annoying  Callender's  counsel,  so 
that  they  abandoned  his  case;  5,  for  arresting,  instead  of 
summoning,  Callender  in  a  case  not  capital ;  6,  for  refus- 
ing to  allow  Callender  a  postponement  of  his  trial;  7,  for 
urging  an  unwilling  Delaware  grand  jury  to  find  indict- 
ments under  the  Sedition  Law;  and  8,  for  "highly 
indecent  and  extra-judicial"  reflections  upon  the  Govern- 
ment of  the  United  States  before  a  Maryland  grand 
jury.  The  eighth  article  covered  his  real  offence;  the 
others  were  the  fruits  of  the  committee's  zealous  research 
into  his  past  official  life. 

VOL.  II. — 33 


498  The  Slavery  Controversy 

The  defence  disproved  very  much  of  the  matter 
alleged,  and  as  to  the  remainder  Chase's  counsel  argued 
successfully  that  his  conduct  had  been  ''rather  a  viola- 
tion of  the  principles  of  politeness  than  of  the  principles 
of  law ;  rather  the  want  of  decorum  than  the  commission 
of  a  high  crime  and  misdemeanor."  On  the  third,  fourth, 
and  eighth  articles  Chase  was  pronounced  guilty  by  a 
small  majority,  the  largest,  nineteen  to  fifteen,  on  the 
eighth;  on  the  other  articles  a  majority  found  him  not 
guilty;  and  as  a  two-thirds  majority  was  not  given  for 
any  article,  he  was  pronounced  not  guilty  on  all,  March 
I,  1805.  The  result  of  the  trial  led  to  some  efforts  on  the 
part  of  the  Democratic  leaders  to  change  the  tenure 
of  Federal  judges.1  Judge  Chase  held  his  seat  on  the 
bench  until  his  death,  June  19,  1811. 

IV.  James  H,  Peck. — December  13,  1830,  Judge  Peck, 
of  the  Federal  District  Court  for  the  district  of  Missouri 
was  tried  on  an  impeachment  passed  by  the  House  at 
the  previous  session.    The  article  against  him   alleged 
arbitrary  conduct,  in  1827,  in  punishing  for  contempt  of 
court  an  attorney  who  had  published  a  criticism  of  Judge 
Peck's  opinion  in  a  land  case.     In  this  case  the  vote  of 
the  Senate  was  twenty-one  guilty,  twenty-four  not  guilty, 
and  Judge  Peck  was  acquitted. 

V.  West  H.  Humphreys. — At  the  outbreak  of  the  Re- 
bellion the  district  judges  of  the  Federal  courts  in  the 
seceding  States,  and  one  of  the  Justices  of  the  Supreme 
Court    (James    A.    Campbell,    of    Alabama),    resigned. 
Justices  Catron,  of  Tennessee,  and  Wayne,  of  Georgia, 
notwithstanding  the  secession  of  their  States,  retained 
their  positions  as  Justices  of  the  Supreme  Court,  and 
their  loyalty  was  never  questioned.     On  the  other  hand, 
Judge    Humphreys,    of   the  Federal    District   Court  of 
Tennessee,  while  actively  engaged  in  the  Rebellion,  had 
not    resigned,    and   impeachment   became  necessary   in 

1  See  Judiciary,  VII. 


Reconstruction — Part  II  499 

order  to  vacate  his  position.  Recourse  was  had  to  a 
secession  speech  made  by  him  in  Nashville,  December 
29,  1860,  and  this,  and  his  acceptance  of  the  office  of 
Confederate  judge,  were  made  the  basis  of  seven  articles 
of  impeachment  by  the  House,  on  which  he  was  con- 
victed by  a  unanimous  vote  of  the  Senate,  June  26,  1862. 

VI.  Andrew  Johnson. — January  7,  1867,  Jas.  M.  Ash- 
ley, of  Ohio,  submitted  a  resolution  in  the  House  direct- 
ing the  judiciary  committee  to  investigate  his  charge 
that  President  Johnson  had  corruptly  used  the  appointing 
power,  the  pardoning  power,  the  veto  power,  and  the 
public  property,  and  had  corruptly  interfered  in  elec- 
tions. The  House  adopted  the  resolution,  and  five  of 
the  nine  members  of  the  committee  reported,  November 
25,  1867,  in  favor  of  impeachment.  Their  resolution  to 
that  effect  was  lost,  December  7th,  by  a  vote  of  56  to  109. 

In  March,  1867,  Congress  had  enacted  that  civil  officers 
"holding  or  hereafter  to  be  appointed"  to  any  office  by 
confirmation  of  the  Senate,  should  retain  office  until  a 
successor  should  be  confirmed  by  the  Senate,  except 
that  Cabinet  officers,  unless  removed  by  consent  of  the 
Senate,  should  "hold  their  offices  for  and  during  the 
term  of  the  President  by  whom  they  may  have  been  ap- 
pointed, and  for  one  month  thereafter."  At  the  same 
time  Congress  had  practically  taken  the  command  of  the 
army  from  the  President,1  and  had  made  the  Secretary  of 
War  really  independent  of,  as  well  as  irremovable  by, 
the  Executive. 

All  the  Cabinet,  except  the  Secretary  of  War,  E.  M. 
Stanton,  seem  to  have  been  in  sympathy  with  the  Presi- 
dent in  March,  but  the  estrangement  between  Stanton 
and  Johnson  increased  so  rapidly  that  the  President  sus- 
pended the  Secretary  of  War,  August  12,  1867,  as  he  was 
allowed  to  do,  by  the  Tenure  of  Office  Act,  while  the  Sen- 
ate was  not  in  session,  and  appointed  the  General  of  the 

1  See  Reconstruction. 


500  The  Slavery  Controversy 

army,  U.  S.  Grant,  Secretray  ad  interim.  Within  twenty 
days  after  the  Senate  should  meet,  the  President  was 
required  by  the  Tenure  of  Office  Act  to  lay  before  the 
Senate  his  reasons  for  any  suspension  during  its  intermis- 
sion ;  in  Stanton's  case  he  did  so,  and  the  Senate,  Janu- 
ary 13,  1868,  by  a  party  vote  of  35  to  6,  non-concurred 
in  Stanton's  suspension.  General  Grant  at  once  notified 
the  President  that  his  functions  as  Secretary  ad  interim 
had  ceased.  Secretary  Stanton  immediately  resumed  his 
place,  and  kept  it  throughout  the  subsequent  proceedings 
until  May  26th,  when  he  finally  relinquished  it. 

The  suspension  of  Stanton  was  a  mistake,  in  so  far  as 
it  recognized  the  mode  of  procedure  laid  down  in  the 
Tenure  of  Office  Act,  since  the  vital  point  in  Johnson's 
case  was  the  applicability  of  that  act  to  Secretary  Stanton. 
The  President,  indeed,  asserted  that  General  Grant  had 
promised  to  hold  the  office  in  spite  of  the  Senate's  non- 
concurrence,  and  thus  force  Secretary  Stanton,  by  an 
appeal  to  the  courts,  to  test  the  constitutionality  of  the 
act ;  and  the  assertion  was  sustained  by  all  the  Cabinet 
officers  except  Stanton,  but  was  denied  by  General 
Grant. 

The  plan,  which  had  been  baulked  by  Grant's  surren- 
der of  the  office  to  Stanton  in  January,  was  resumed  in 
February  with  a  more  reliable  instrument,  and  apparently 
with  better  legal  advice.  February  I3th,  the  President 
desired  General  Grant  to  appoint  Gen.  L.  Thomas  adju- 
tant-general, and  the  appointment  was  made.  February 
2 ist,  the  President  removed  Stanton,  as  if  the  Tenure 
of  Office  Act  did  not  apply  to  his  case,  and  appointed 
Thomas  Secretary  of  War  ad  interim,  under  the  law  of 
February  13,  1795,  which  allowed  the  appointment  of 
such  officers,  in  emergencies,  for  not  more  than  six 
months,  without  confirmation  by  the  Senate.  Stanton 
refused  to  vacate  the  office,  and  notified  the  Speaker 
of  the  House  of  his  attempted  removal.  February  24th, 


Reconstruction — Part  II  501 

the  House  adopted  a  resolution  of  impeachment  by  a 
vote  of  126  to  42,  and  on  the  following  day  a  committee 
impeached  the  President  at  the  bar  of  the  Senate.  By 
tacit  consent,  all  attempts  to  obtain  possession  of  the 
War  Department  were  dropped  to  abide  the  result  of  the 
impeachment. 

The  House  managers  of  the  impeachment  were  John 
A.  Bingham  of  Ohio,  Geo.  S.  Boutwell  and  Benj.  F. 
Butler  of  Massachusetts,  Jas.  F.  Wilson  of  Iowa, 
Thomas  Williams  and  Thaddeus  Stevens  of  Pennsylvania, 
and  John  A.  Logan  of  Illinois. 

The  President's  counsel  were  Henry  Stanbery  and  W. 
S.  Groesbeck  of  Ohio,  Wm.  M.  Evarts  of  New  York, 
Thos.  A.  R.  Nelson  of  Tennessee,  and  Benj.  R.  Curtis 
of  Massachusetts. 

March  4th,  the  managers  presented  eleven  articles, 
impeaching  the  President  of  the  following  high  crimes 
and  misdemeanors:  i.  The  issuance  of  an  order  remov- 
ing Stanton,  with  intent  to  violate  the  Tenure  of  Office 
Act,  after  the  Senate  had  refused  to  concur  in  his  suspen- 
sion ;  2,  the  issuance  of  an  order  to  Thomas  to  act  as 
Secretary  of  War  ad  interim  while  the  Senate  was  in 
session,  no  "vacancy  existing"  in  the  War  Department, 
with  intent  to  violate  the  Tenure  of  Office  Act  and  the 
Constitution,  and  3,  without  authority  of  law;  4,  con- 
spiracy with  Thomas  and  other  persons  with  intent,  by 
intimidation  and  threats,  to  prevent  Stanton  from  acting 
as  Secretary;  5,  to  prevent  the  execution  of  the  Tenure 
of  Office  Act ;  6,  to  seize  the  War  Department's  property 
by  force,  and,  7,  to  violate  the  Tenure  of  Office  Act ;  8, 
the  appointment  of  Thomas  with  intent  to  control  unlaw- 
fully the  disbursement  of  the  War  Department's  moneys ; 

9,  an  attempt  to  induce  General   Emory,  commanding 
the  Department  of  Washington,  to  disobey  the  act  above 
referred  to,  regulating  the  issuance  of  orders  to  the  army ; 

10,  the  use,  in  regard  to  Congress,  of  "utterances,  declar- 


502  The  Slavery  Controversy 

ations,  threats,  and  harangues,  highly  censurable  in 
any,  and  peculiarly  indecent  and  unbecoming  in  the  Chief 
Magistrate  of  the  United  States,  by  means  whereof  said 
Andrew  Johnson  has  brought  the  high  office  of  Presi- 
dent into  contempt,  ridicule,  and  disgrace,  to  the  great 
scandal  of  all  good  citizens"  ;  and  n,  his  public  declara- 
tion that  the  Thirty-ninth  Congress  was  no  constitutional 
Congress,  but  a  Congress  of  part  of  the  States,  "thereby 
denying  and  intending  to  deny  that  its  legislation  was 
obligatory  upon  him,  and  that  it  had  any  power  to  pro- 
pose amendments  to  the  Constitution,"  and  designing  to 
prevent  the  execution  of  the  Tenure  of  Office  Act,  the  Act 
for  the  government  of  the  army,  and  the  reconstruction 
acts.  The  last  two  articles  were  additions  to  the  origi- 
nal nine  articles,  based  upon  certain  speeches  made  by 
the  President  during  a  tour  to  St.  Louis  in  August  and 
September,  1866. 

The  answer  of  the  President,  through  his  counsel,  may 
be  reduced  to  four  heads,  i.  As  to  articles  1-3,  he 
averred  that  Stanton,  having  been  appointed  by  President 
Lincoln,  January  15,  1862,  having  served  out  "the  term 
of  the  President  by  whom  he  had  been  appointed,"  and 
never  having  been  reappointed,  was  not  embraced  in  the 
terms  or  the  intention  of  the  Tenure  of  Office  Act,  of 
March  2,  1867;  that  Stanton  had  taken  office  and  kept  it 
"during  the  pleasure  of  the  President  "  according  to  the 
terms  of  the  act  of  August  7,  1789,  organizing  the  War 
Department,  and  according  to  the  practice  of  all  Presi- 
dents and  Congresses  down  to  March,  1867;  that  Stan- 
ton's  removal  was  not  in  violation  of  the  Tenure  of  Office 
Act ;  and  that  the  appointment  of  Thomas  was  to  fill  an 
existing  vacancy.  2.  As  to  articles  4-7,  he  denied  any 
conspiracy,  any  intimidation,  or  any  authority  to  use 
force  given  by  him  to  Thomas,  and  asserted  that  the 
only  connection  between  him  and  Thomas  was  an  order 
from  him  as  superior  and  obedience  to  it  by  Thomas. 


Reconstruction — Part  II  503 

3.  He  denied  the  truth  of  article  8.  4.  As  to  articles 
9-11,  he  claimed  the  right  of  freedom  of  opinion  and  of 
freedom  of  speech ;  he  asserted  that  his  declarations  to 
Emory  and  to  public  meetings  were  identical  with  his 
messages  to  Congress ;  and  called  attention  to  the  fact 
that  the  allegations  in  these  articles  did  not  "touch  or 
relate  to  any  official  act  or  doing"  of  the  President. 

The  trial,  beginning  with  the  organization  of  the  Sen- 
ate as  a  court  to  try  the  impeachment,  March  5th,  ended 
March  26th.  Excluding  the  twenty  Senators  from 
Southern  States  not  yet  admitted,  the  total  number  of 
Senators  was  fifty-four;  the  two-thirds  vote,  needed  for 
conviction,  would,  therefore,  have  been  thirty-six  to 
eighteen.  There  were  twelve  Democratic  Senators,  all 
of  whom  were  quite  certain  to  vote  not  guilty,  so  that  it 
was  necessary  that  at  least  seven  Republican  Senators 
should  vote  against  conviction  on  all  the  articles  in  order 
to  secure  an  acquittal.  Before  a  vote  was  reached  it  was 
very  apparent  that  there  were  but  three  articles  (2,  3,  and 
n)  on  which  a  conviction  was  possible.  On  the  "con- 
spiracy" articles  (4-7),  and  the  "Emory"  article  (9),  the 
proof  had  failed  to  convince  many  Republican  Senators. 
The  "Butler"  article (10)  consisted  of  unofficial  utterances 
of  the  President.  On  the  "Stanton"  articles  (i,  8)  several 
Republican  Senators  asserted  that  the  Tenure  of  Office 
Act  was  admitted  at  the  time  of  its  passage  not  to  apply 
to  President  Lincoln's  Secretaries;  Sherman,  of  Ohio, 
one  of  the  Senate  conferees  on  the  act,  says  in  his  opin- 
ion :  "Can  I,  who  still  believe  it  to  be  the  true  and  legal 
interpretation  of  those  words,  can  I  pronounce  the  Presi- 
dent guilty  of  crime,  and  by  that  vote  aid  to  remove  him 
from  his  high  office,  for  doing  what  I  declared  and  still 
believe  he  had  a  legal  right  to  do?  God  forbid."  May 
i6th,  by  order  of  the  Senate,  the  vote  was  taken  on  the 
eleventh  article  first,  and  was  found  to  be  thirty-five  for 
conviction  and  nineteen  for  acquittal,  seven  Republican 


5°4  The  Slavery  Controversy 

Senators  voting  in  the  minority.  The  Senate  adjourned 
at  once  until  May  26th,  when  a  vote  was  taken  on  the 
second  and  third  articles,  with  exactly  the  same  result  as 
on  the  eleventh.  The  Senate  then  adjourned  sine  die, 
without  voting  upon  the  other  articles,  and  the  Chief 
Justice  directed  a  verdict  of  acquittal  to  be  entered  upon 
the  record. 

The  strength  of  the  eleventh  article  lay  in  its  charge 
that  the  President  had  not  faithfully  executed  the  Tenure 
of  Office  Act  or  the  reconstruction  acts,  his  declarations 
that  Congress  was  "not  a  Congress"  being  apparently 
intended  to  show  his  mala  fides.  Its  weakness  lay  in  its 
vagueness,  and  in  the  fact  that  it  charged  the  President 
with  "designing  and  contriving"  means  to  avoid  the  ex- 
ecution of  the  law,  rather  than  with  any  overt  acts.  As 
to  this  article,  then,  the  difference  of  opinion  went 
mainly  to  the  meaning  of  the  language.  The  second 
and  third  articles,  particularly  the  former,  seem  to  have 
been  lost  because  of  their  complication  with  Stanton's 
removal,  and  their  statement  that  "no  vacancy  existed" 
when  Thomas  was  appointed.  If  Stanton's  removal 
were  legal,  the  Tenure  of  Office  Act  would  then  seem 
to  apply  to  his  office  for  the  first  time  after  he  had  been 
removed;  and  the  absolute  prohibition,  in  the  second 
section  of  the  act,  of  ad  interim  appointments,  except 
in  cases  of  suspension,  would  seem  to  hit  the  case  of 
Thomas's  appointment  exactly,  though  even  then  there 
would  have  been  a  fair  question  whether  the  appoint- 
ment were  a  high  crime  and  misdemeanor.  Those  of  the 
seven  acquitting  Republican  Senators  who  filed  opin- 
ions seem  to  have  voted  not  guilty  on  these  articles  be- 
cause of  the  "no  vacancy"  clause,  and  because  a  vote 
for  conviction  would  have  stultified  their  opinions  on  the 
first  and  eighth  articles  (Stanton's  removal);  but,  even 
without  the  objectionable  clause,  it  is  extremely  probable 
that  they  would  still  have  voted  not  guilty  on  the  general 


Reconstruction — Part  II  505 

ground  of  want  of  evil  intent  in  the  President's  action. 
The  only  conclusion  to  be  drawn  from  the  conduct  of  the 
whole  case  is  that  the  House  was  too  hasty  in  impeach- 
ing; if  it  had  waited  patiently  for  some  overt  act  to  com- 
plete the  eleventh  article,  that  article  would  have  been 
impregnable,  and  it  is  difficult  to  see  how  conviction 
could  have  been  avoided  honestly. 

VII.  William  W.  Belknap. — In  February  and  March, 
1876,  the  House  Committee  on  Expenditures  in  the  War 
Department  discovered  that  Secretary  Belknap,  of  that 
department,  had  for  six  years  been  receiving  money  for 
the  appointment  and  retention  in  office  of  the  post -trader 
at  Fort  Sill,  Indian  Territory.  The  total  amount 
received  was  about  $24,450.  The  House  voted  unani- 
mously to  impeach  him,  March  2,  1876,  but  a  few  hours 
before  the  impeachment  resolution  was  passed,  Belknap 
resigned,  and  his  resignation  was  accepted  by  President 
Grant.  April  4th,  the  managers  of  the  impeachment  on 
the  part  of  the  House  appeared  at  the  bar  of  the  Senate, 
and  exhibited  five  articles  of  impeachment,  covering  the 
various  receipts  of  money  charged  against  Belknap.  In 
his  reply  the  defendant  claimed  to  be  a  private  citizen  of 
Iowa,  and  denied  the  power  of  the  House  to  impeach 
any  one  who,  by  resignation  or  otherwise,  had  ceased  to 
be  a  "civil  officer  of  the  United  States."  May  4-29,  the 
question  whether  Belknap  was,  under  all  the  circum- 
stances, amenable  to  trial  by  impeachment  was  argued 
and  decided  in  the  affirmative  by  a  vote  of  37  to  29;  but 
the  vote  proved  the  hopelessness  of  conviction,  since  the 
minority  was  too  large  to  allow  a  two-thirds  vote  of 
guilty.  The  evidence  and  argument  on  both  sides  con- 
tinued from  July  6th  until  August  1st,  when  the  vote 
stood  36  guilty  to  25  not  guilty  on  the  second,  third,  and 
fourth  articles,  35  to  25  on  the  first,  and  37  to  25  on  the 
fifth  article.  The  majority  for  conviction  not  being  two 
thirds,  a  verdict  of  acquittal  was  entered.  The  vote  of 


506  The  Slavery  Controversy 

the    minority    was    given    on    the    ground    of    want   of 
jurisdiction.1 

On  Freedmen's  Bureau  see  McPherson's  History  of  the 
Reconstruction;  and  other  authorities  under  preceding 
chapter.  The  first  Freedmen's  Bureau  Bill  is  in  13  Stat. 
at  Large  ($%ih  Cong.),  507;  the  second  Freedmen's  Bureau 
Bill  is  in  13  Stat.  at  Large  (39th  Cong.),  173.  See  also 
Burgess's  Reconstruction. 

On  Civil  Rights  Bill  see  14  Stat.  at  Large,  27;  16  Wall., 
36;  92  U.  S.,  542;  i  Hughes,  536;  92  U.  S.,  90;  100  U.  S., 
3io,  345. 

On  Amnesty  see  Appleton's  Annual  Cyclopedia  (1861- 
73),  McPherson's  Political  History  of  the  Rebellion  and 
History  of  the  Reconstruction.  For  the  successive  pro- 
clamations above  referred  to,  see  (I.)  Dec.  8,  1863,  and 
March  26,  1864,  13  Stat.  at  Large  (38th  Cong.),  appendix 
i,  vii.,  xi. ;  (II.)  May  29,  1865,  McPherson's  History  of 
the  Reconstruction,  9;  (III.-V.)  Sept.  7,  1867,  July  4  and 
Dec.  25,  1868,  15  Stat.  at  Large,  699,  702,  711.  The  act 
of  July  17,  1862,  is  in  12  Stat.  at  Large,  589  (§  13);  the 
act  of  May  22,  1872,  is  in  17  Stat.  at  Large,  142. 

On  Ku-Klux  Klan  see  Report  of  the  Joint  Select  Com- 
mittee on  the  Condition  of  Affairs  in  the  Late  Insurrection- 
ary States,  Report  No.  22,  Part  i,  42d  Congress,  2d 
Session,  February  19,  1872,  as  follows:  i  :i,  report  of  the 
majority  (Republican);  I  :ioi,  of  the  sub-committee 
on  election  laws ;  I  1289,  of  the  minority  (Democratic) ; 
1:589,  journal  of  the  committee;  13:35,  constitution  of 
the  order;  8:452,  probable  origin;  2:208,  232,  11:274, 
12:778,  1159  (cut),  disguises;  4:653,  oaths;  n:  385,  de- 
finition of  "scalawag";  7:764,  definition  of  "carpet- 
bagger" ;  the  most  useful  testimony  to  the  reader  is  that 
of  James  L.  Orr,  South  Carolina  (3:1),  D.  C.  Forsyth, 
J.  B.  Gordon,  and  Carleton  B.  Cole,  Georgia  (6:19,  354, 

1  See  Tenure  of  Office,  Reconstruction. 


Reconstruction — Part  II  507 

and  7:1182),  Peter  M.  Dox,  Lionel  W.  Day,  and  Wm.  S. 
Mudd,  Alabama  (8:428,  590,  and  10:1745),  John  A. 
Orr  and  G.  W.  Wells,  Mississippi  (12:697,  1147),  and 
N.  B.  Forrest,  Tennessee  (13:3);  Ku-Klux  Trials  (1871); 
the  act  of  April  20,  1871,  and  proclamations  of  October 
1 2th  and  I7th,  are  in  17  Stat.  at  Large,  13,  App.  iii. 
(Nos.  3,  4). 

On  Impeachments  see,  in  general,  2  Woodeson's  Lec- 
tures, 602 ;  2  Bancroft's  History  of  the  Constitution,  193; 
Tucker's  Blackstone,  App.  335 ;  The  Federalist,  Ixv. ; 
Story's  Commentaries,  §§686,  740;  Rawle's  Commentaries, 
200 ;  2  Wilson's  Law  Lectures,  165  ;  2  Curtis's  History  of 
the  Constitution,  171,  397;  American  Law  Register,  March, 
1867  (Dwight's  Trial  by  Impeachment};  Wharton's  State 
Trials;  Trial  of  Alexander  Addison ;  i  DalL,  329; 
Pickering  and  Gardner's  Trial  of  Judge  Prescott ;  5  Web- 
ster's Works,  502.  (I.)  5  Hildreth's  United  States,  88, 
201 ;  9  Cobbett's  Works;  Trial  of  William  Blount ; 
Wharton's  State  Trials,  200;  3  Sen.  Leg.  Jour.,  App. 
(II.)  5  Hildreth's  United  States,  510;  3  Spencer's  United 
States,  53;  3  Sen.  Leg.  Jour.,  App.;  Annals  of  Congress, 
8th  Cong.,  ist  Sess.,  315-368.  (III.)  5  Hildreth's  United 
States,  543;  3  Spencer's  United  States,  53;  I  Garland's 
Life  of  Randolph,  196;  Evans's  Trial  of  Judge  Chase ; 
Smith  and  Lloyd's  Trial  of  Judge  Chase ;  3  Sen.  Leg. 
Jour.,  App.;  3  Benton's  Debates  of  Congress,  88,  173. 
(IV.)  Stansbury's  Trial  of  Judge  Peck ;  10  Benton's 
Debates  of  Congress,  546,  556;  II  ib.,  24,  124.  (V.)  47- 
49  Congressional  Globe  ;  44  Rep.  House  Com. ,  3Jth  Cong. , 
2d  Sess.  (VI.)  Impeachment  of  President  Johnson,  Pub- 
lished by  Order  of  the  Senate ;  Schuckers's  Life  of  S.  P. 
Chase,  547.  (VII.)  Impeachment  of  Secretary  Belknap, 
Published  by  Order  of  the  Senate  ;  Appleton's  Annual 
Cyclopedia,  1876,  686.  For  the  acts  of  May  8,  1792,  Feb. 
13,  1795,  Feb.  20,  1863,  and  March  2,  1867,  D.  M. 
Dewitt's  Impeachment  and  Trial  of  Andrew  Johnson. 


CHAPTER  XVI 

THE  ELECTORAL  COLLEGE  AND  ITS   HISTORY 

ELECTORAL  COLLEGE  is  the  name  commonly 
given  to  the  Electors  of  a  State,  when  met  to  vote 
for  President  and  Vice-President.  The  term  itself  is  not 
used  in  the  Constitution,  nor  in  the  act  of  March  i,  1792, 
the  "bill  of  1800,"  or  the  act  of  March  26,  1804.  Its 
first  appearance  in  law  is  in  the  act  of  January  23,  1845, 
which  purported  to  empower  each  State  to  provide  by 
law  for  the  filling  of  vacancies  in  its  "college  of  electors" ; 
but  it  had  been  used  informally  since  about  1821. 

Under  the  Constitution  and  the  laws  the  duties  of  the 
electors,  or  of  the  "Electoral  College,"  if  the  term  be 
preferred,  are  as  follows:  I.  They  are  to  meet  on  the  day 
appointed  by  the  act  of  1845,  a*  a  place  designated  by 
the  law  of  their  State.  No  organization  is  required, 
though  the  Electors  do  usually  organize,  and  elect  a 
chairman.  2.  The  electors  are  then  to  vote  by  ballot 
for  President  and  Vice-President,  the  ballots  for  each 
office  being  separate.  Until  the  adoption  of  the  Twelfth 
Amendment,  the  electors  were  simply  to  vote  for  two 
persons,  one  at  least  an  inhabitant  of  some  other  State 
than  their  own,  without  designating  the  office ;  and  the 
candidate  who  obtained  a  majority  of  all  the  electoral 
votes  of  the  country  became  President,  the  next  highest 
becoming  Vice-President.  3.  The  original  ballots  are 
the  property  of  the  State,  and,  if  its  law  has  directed 
their  preservation,  they  are  to  be  so  disposed  of.  The 
electors  are  (by  the  law  of  1792)  to  make  three  lists  of 

508 


The  Electoral  College  and  its  History     509 

the  persons  voted  for,  the  respective  offices  they  are  to 
fill,  and  the  number  of  votes  cast  for  each.  4.  They  are 
to  make  and  sign  three  certificates,  one  for  each  list, 
"certifying  on  each  that  a  list  of  the  votes  of  such  State 
for  President  and  Vice-President  is  contained  therein." 
5.  They  are  to  add  to  each  list  of  votes  a  list  of  the  names 
of  the  electors  of  the  State,  made  and  certified  by  the 
"executive  authority"  (the  Governor)  of  the  State.  The 
name  of  the  executive  was  left  ambiguous,  because 
several  of  the  States  in  1792  still  retained  the  use  of  the 
title  "president"  of  the  State,  instead  of  governor.  6. 
They  are  to  seal  the  certificates,  and  certify  upon  each 
that  it  contains  a  list  of  all  the  electoral  votes  of  the 
State.  7.  They  are  to  appoint  by  writing  under  their 
hands,  or  under  the  hands  of  a  majority  of  them,  a 
person  to  deliver  one  certificate  to  the  President  of  the 
Senate  at  the  seat  of  government.  8.  They  are  to  for- 
ward another  certificate  by  the  post-office  to  the  President 
of  the  Senate.  9.  They  are  to  cause  the  third  certificate 
to  be  delivered  to  the  (Federal)  judge  of  the  district  in 
which  they  assemble.  The  Electoral  College  is  then 
dead  in  law,  whether  it  adjourns  temporarily  or  perma- 
nently, or  never  adjourns. 

There  is  no  penalty  to  be  inflicted  upon  the  electors 
for  an  improper  performance  of  their  duties,  or  even  for 
a  refusal  to  perform  them  at  all.  If  a  vacancy  occurs 
among  the  electors,  by  death,  refusal  to  serve,  or  any 
other  reason,  the  State  is  empowered  by  the  act  of  1845 
to  pass  laws  for  the  filling  of  the  vacancy,  by  the  other 
electors,  for  example.  If  no  such  State  law  has  been 
passed,  the  vote  or  votes  are  lost  to  the  State,  as  with 
Nevada  in  1864.  If  a  general  refusal  of  the  electors  of 
the  country  to  serve  should  cause  no  election  to  result, 
the  choice  of  President  and  Vice-President  would  de- 
volve on  the  House  of  Representatives  and  the  Senate 
respectively. 


510  The  Slavery  Controversy 

ELECTORS  AND  THE  ELECTORAL  SYSTEM.  I.  Origin 
of  the  System. — On  no  subject  was  there  such  diversity 
of  individual  opinion  and  of  action  in  the  convention  of 
1787  as  on  that  of  the  mode  of  election  of  the  President, 
for  the  office  of  Vice-President  was  never  thought  of  until 
nearly  the  close  of  the  convention's  labors.  The  two 
plans,  the  "Virginia  Plan"  and  the  "Jersey  Plan,"  sub- 
mitted by  the  nationalizing  and  particularist  elements  of 
the  convention  at  the  opening  of  its  work,  agreed  in  giv- 
ing the  choice  of  the  President  to  Congress ;  and  Chas. 
Pinckney's  plan,  which  takes  the  medium  between  them, 
made  no  provisions  as  to  the  manner  of  the  President's 
election. 

The  debate  had  hardly  opened  when  the  diversity  of 
opinion  became  apparent.  Wilson,  of  Pennsylvania, 
wished  to  have  a  popular  election  by  districts.  Sherman, 
of  Connecticut,  wished  to  retain  the  choice  by  Congress. 
Gerry,  of  Massachusetts,  apparently  at  first  wished  to 
have  electors  chosen  by  the  States  in  proportion  to  popu- 
lation, with  the  unit  rule;  but  he  afterward  settled  on  a 
choice  of  the  President  by  the  governors  of  the  States. 
Hamilton  wished  to  have  the  President  chosen  by  secon- 
dary electors,  chosen  by  primary  electors,  chosen  by  the 
people.  Gouverneur  Morris  wished  to  have  the  Presi- 
dent chosen  by  general  popular  vote  en  masse.  The  Vir- 
ginia Plan,  as  amended  and  agreed  to  in  Committee  of 
the  Whole,  June  iQth,  retained  the  election  by  Congress. 
July  1 7th,  popular  election  and  choice  by  electors  were 
voted  down,  and  the  choice  by  Congress  was  again  ap- 
proved, this  time  unanimously.  Two  days  afterward, 
July  i  pth,  the  choice  by  Congress  was  reconsidered,  and 
a  choice  by  electors  chosen  by  the  State  legislatures  was 
adopted.  Five  days  afterward,  July  24th,  the  choice  by 
electors  was  reconsidered  and  lost,  and  the  choice  by 
Congress  revived.  In  this  form  it  went  to  the  Commit- 
tee of  Detail,  was  reported  favorably  by  them  August 


The  Electoral  College  and  its  History    511 

6th,  and  again  referred  to  them  unchanged  August  3ist. 
In  their  report  of  September  4th,  less  than  two  weeks 
before  the  final  adjournment  of  the  convention,  this 
committee  reported  the  electoral  system  very  nearly  as 
it  was  finally  adopted,  September  6th. 

In  this  report  of  September  4th  the  office  of  Vice- 
President  was  first  introduced;  indeed,  the  creation  of 
this  office  was  an  integral  part  of  the  electoral  system. 
Several  amendments  offered  on  the  last  two  days  of  the 
convention  were  rejected,  as  too  late,  and  the  electoral 
system  was  a  part  of  the  Constitution  as  offered  to  the 
State  conventions  and  ratified  by  them.  It  will  appear 
from  a  reconsideration  that  a  choice  by  Congress  was  the 
steady  determination  of  the  convention  for  all  but  the 
last  two  weeks  of  its  existence,  excepting  the  five  days 
during  which  it  inclined  toward  a  direct  choice  of  electors 
by  State  legislatures ;  but  that  its  final  decision  gave  the 
choice  of  President  and  Vice-President  to  electors,  ap- 
pointed "in  such  manner  as  the  legislatures  of  the  States 
might  direct." 

II.  Design  of  the  System. — In  the  inquiry  as  to  what 
the  system  was  designed  to  be  by  its  framers,  no  more  is 
necessary  than  to  take  the  plain  sense  of  the  words  used 
in  the  Constitution,  as  cited  under  the  fourth  head  of  this 
article,  supplemented  in  practice  by  the  language  of  the 
Federalist,  its  authoritative  exponent  at  the  time,  and 
by  the  action  of  the  first  two  Congresses,  in  which  the 
framers  of  the  Constitution  were  numerously  repre- 
sented, fifteen  of  the  thirty-eight  signers  being  members 
of  the  first  Congress,  and  fourteen  of  the  second. 

i.  If  any  one  thing  is  plain  from  the  constitutional 
provisions  on  the  subject,  it  is  that  the  people,  in  adopt- 
ing the  Constitution,  voluntarily  debarred  themselves 
from  the  privilege  of  a  popular  election  of  President  and 
Vice-President,  and  all  arguments  from  the  aristocratic 
tendencies  of  the  system  are  utterly  irrelevant,  so  long 


512  The  Slavery  Controversy 

as  the  people  do  not  see  fit  to  alter  essentially  the  lan- 
guage of  the  Constitution.  The  object  was  to  avoid  the 
very  "heats  and  ferments"  which  their  descendants  to 
their  sorrow  experience  every  four  years ;  and  to  this  end 
the  electors  were  even  to  meet  and  vote  in  their  respec- 
tive States,  and  not  in  any  central  location. 

2.  It  is  also  plain  that  absolute  control  of  the  "appoint- 
ment"  of    the   electors,   with  the  exceptions  hereafter 
noted,  was  given  to  the  State  legislatures.     The  people 
refused  to  exercise  it  themselves,  either  in  their  national 
or  in  their  State  capacity.     The  words  "in  such  manner 
as  the  legislature  thereof  may  direct"  are  as  plenary  as 
the  English  language  could  well  make  them.     In  what- 
ever manner  the  legislature  may  direct  the  appointment 
to  be  made, — by  its  own  election,  by  a  popular  vote  of  the 
whole  State,  by  a  popular  vote  in  districts,  by  a  popular 
vote  scrutinized  by  canvassing  officers  or  returning  boards, 
or   even   by   appointment   of    a   returning    board   or  a 
governor  without  any  popular  vote  whatever, — common- 
sense  shows  that  there  is  no  other  power  than  an  amend- 
ment of  the  Constitution's  express  language  which  can 
lawfully  take  away  the   control  of   the  legislature  over 
the  manner  of  appointment.     Any  interference  with  the 
appointment  by  Congress,  in  particular,  either  directly 
or  under  the  subterfuge  of  an  "electoral  commission,"  is 
evidently  a  sheer  impertinence  and  usurpation,  however 
it  may  be  condoned  by  popular  acquiescence  in  the  in- 
evitable.    Even  the  State  court  of  last  resort  can  only 
interfere  so  far  as  to  compel  obedience  by  State  officers 
to  the  will  of  the  legislature. 

3.  One  exception  to  the  legislature's  power,  inserted 
to   guard  against   executive   influence,    only  makes  the 
absoluteness  of  the  rest  of  the  grant   more  emphatic. 
The  legislature  is  not  to  appoint  any  "Senator  or  Repre- 
sentative, or  person  holding  an  office  of  trust  or  profit 
under  the  United  States,"  an  elector.     Where  the  legis- 


The  Electoral  College  and  its  History     513 

lature  directs  the  ''appointment"  to  be  made  by  popular 
vote,  it  must  be  evident  that  votes  cast  for  the  appoint- 
ment of  a  person  whom  the  Constitution  expressly  bars 
from  appointment  have  no  existence  in  law;  and  the 
person  for  whom  they  were  cast  cannot  "appoint"  him- 
self anew  by  resigning  his  office  after  the  election  and 
thus  reviving  invalid  votes.  How  the  vacancy,  if  any,  is 
to  be  filled,  must  be  regulated  by  the  legislature,  for  the 
electors  themselves  have  no  such  power  by  virtue  either 
of  their  office  or  of  the  Constitution. 

4.  In  one  respect  Congress  could  legitimately  interfere 
for  the  purpose  of  preventing  "intrigue  and  corruption," 
by  naming  the  day  on  which  the  electors  should  meet 
and  vote.     Accordingly  the  2d  Congress,  by  the  act  of 
March  I,  1792,  fixed  the  day  for  their  voting  on  the  first 
Wednesday  in  December,  and  the  day  of  their  election 
"within  thirty-four  days"  preceding  it;  and  the  act  of 
January  23,  1845,  hereafter  given,  fixed  the  day  for  the 
appointment  of  electors.     When  Congress  had  done  this, 
it  was  functus  officio,  and  had  no  more  right  than  a  private 
person  to  violate  the  Constitution  and  its  own  laws,  by 
forcing  the  admission  of  votes  cast  by  electors  on  an 
unlawful  day. 

5.  Congress  was  further  given,  but  for  more  caution 
indirectly  (in  Art.   IV.    §  i),  the  power  to  declare  the 
manner  in   which  the    action   of  the    State   appointing 
power  should  be  authenticated,  and  for  further  caution 
this  was  only  to  be  done  "by  general  law."     The  act  of 
1792  provided  that  the  votes  of  the  electors  should  be 
authenticated  by  the  certificate  of  the  governor  of  the 
State.     Evidently  the  courts  of  the  State  are  the  final 
tribunal  to  decide  who  is  the  governor  of  the  State,  and 
it  would  have  been  competent  to  the  power  of  Congress 
to  require  from  the  State  court,  "by  general  law,"  an 
authentication  of  the  governor's  certificate.      This  has 
never  been  done.     For  Congress  to  omit  this  portion  of 

VOL.  II. — 33. 


5*4  The  Slavery  Controversy 

its  duty,  and  leave  special  cases  to  its  own  special  law 
and  arbitrary,  partisan  decision,  is  evidently  in  flat 
violation  of  the  supreme  law. 

6.  The  act  of  1792  provides  that  the  electors  shall  make 
three  certificates  of  all  their  votes,  two  of  which  shall  be 
sent  to  the  President  of  the  Senate,  one  by  mail  and  one 
by  special  messenger,  and  the  third  shall  be  deposited 
with  the  (Federal)  judge  of   the  district  in  which  they 
vote ;  that  if  neither  of  the  first  two  shall  reach  its  desti- 
nation by  the  first  Wednesday  in  January,  the  Secretary 
of  State  shall  send  a  special  messenger  for  the  third  to  the 
district  judge;  and  that,  if  there  be  no  President  of  the 
Senate  at  the  seat  of  government,  the  Secretary  of  State 
shall  receive  and  keep  the  certificates  for  the  President  of 
the  Senate.     The  transmission  of  the  votes  is  thus  very 
well  provided  for. 

7.  The  President  of  the  Senate  is  to  open  all  the  cer- 
tificates in  the  presence  of  the  Senate  and   House  of 
Representatives,  and  the  act  of  1792  specifies  the  second 
Wednesday  of  February  succeeding  the  election  as  the 
•day  for  the  performance  of  this  duty.     In  pursuance  of 
its  power  to  provide  for  the  authentication  of  State  acts 
and  records,  it  would  be  perfectly  competent  for  Con- 
gress to  so  distinctly  specify  the  necessary  authentication 
of  the  electors'  action  and  title  that  there  could  be  no 
doubt  in  the  mind  of  the  President  of  the  Senate  as  to 
which  papers  were  certificates,  and  which  were  not.     In 
the  absence  of  any  such  general  law,  the  President  of 
the  Senate  is  evidently  left  without  any  guide  whatever, 
excepting  that  which  must  be  the  guide  of  every  officer 
in  like  circumstances,  his  own  best  judgment.     It  was 
for  this  reason,  because  of  the  evident  impossibility  of 
the  passage  of  a  general  law  to  meet  the  case  in  1789, 
that  the  convention  of  1787  passed  the  following  resolu- 
tion: "That  the  Senators  and   Representatives  should 
convene  at   the   time   and  place  assigned   [New  York, 


The  Electoral  College  and  its  History     515 

March  4,  1789],  and  that  the  Senators  should  appoint  a 
President  of  the  Senate  for  the  sole  purpose  of  receiving, 
opening,  and  counting  the  votes  for  President."  This 
resolution  was  ratified  with  the  Constitution  by  the  State 
conventions,  and  must  be  taken  as  expressing  the  con- 
temporary intention  to  cover  the  rea\"casus  omissus," 
viz.,  the  neglect,  refusal,  or  inability  of  Congress  to  pass 
a  general  law  for  the  final  authentication  of  certificates. 
The  intention  of  the  system  was  that  the  President  of 
the  Senate  should  canvass  the  votes :  in  accordance  with 
a  general  authenticating  law,  if  Congress  would  or  could 
pass  such  a  law;  otherwise,  according  to  his  own  best 
judgment.  The  members  of  the  convention  were  not 
such  bungling  workmen  as  the  modern  idea  of  the  "elec- 
toral count"  would  make  them.  They  were  not  so  fool- 
ish as  to  entrust  the  canvass  to  two  independent  agents, 
equal  in  rank,  and  without  an  arbiter  in  case  of  disagree- 
ment. They  had  a  legislative  power  in  Congress  and  the 
President,  capable  of  making  "general  laws"  to  govern 
the  canvass ;  they  had  a  single  ministerial  power,  in  the 
President  of  the  Senate,  capable  of  carrying  the  general 
laws  into  effect ;  and  they  gave  to  each  power  its  appro- 
priate office.  The  system  never  contemplated  the  refusal 
of  Congress  to  pass  a  general  law  with  the  purpose  of 
using  its  own  laches  to  gain  partisan  control  over  special 
cases  as  they  arose. 

8.  Had  Congress  done  its  plain  duty  in  the  premises,  and 
carried  out  the  system  in  its  letter  and  spirit,  as  the  con- 
vention of  1787  intended,  it  is  evident  that  that  honorable 
body  would  have  been  reduced  to  its  proper  constitu- 
tional position  as  the  official  witness  and  register  of  the 
votes  which  have  been  declared  by  the  President  of  the 
Senate  in  accordance  with  general  law.  The  Constitution 
says,  and  need  say,  nothing  of  who  shall  count — 
only  "and  the  votes  shall  then  be  counted";  for,  if  the 
orderly  succession  of  steps  has  taken  place  according  to 


516  The  Slavery  Controversy 

the  design  of  the  system,  the  "count,"  in  its  legitimate 
and  plain  meaning,  can  be  done  by  tellers  appointed  by 
the  House,  by  individual  members,  by  the  newspaper 
reporters,  or  by  any  one  who  is  able  to  do  simple  addi- 
tion, though  the  journal  of  the  official  witnesses  is  the 
authoritative  and  permanent  record  of  it.  It  is  possible 
to  imagine  an  unfair  and  illegal  decision  by  the  President 
of  the  Senate,  though  no  such  case  occurred  while  that 
officer  (until  1821)  maintained  his  proper  place;  and  it  is 
easy  to  see  how  hard  it  would  be  to  punish  him  for  such 
an  offence.  But  it  is  absolutely  impossible  to  punish 
Congress  for  a  partisan  use  of  its  usurped  jurisdiction; 
and  yet  that  body,  since  it  has  seized  control  of  the  can- 
vass of  the  votes,  has  hardly  ever,  even  in  appearance, 
made  any  other  than  a  partisan  use  of  the  power,  no 
matter  what  party  was  in  the  majority.  The  Constitu- 
tion, by  concentrating  responsibility,  found  the  safest 
place  for  the  canvass  of  the  votes,  and  it  left  the  "count" 
unassigned  and  unguarded  because  there  was  no  need  of 
any  other  guard  than  the  laws  of  arithmetic.  All  the 
abstruse  debate  as  to  the  meaning  of  the  simple  word 
"count"  has  its  origin  in  the  determination  of  Congress 
to  give  it  the  meaning  of  "canvass"  and  then  to  seize 
control  of  it.  For  this  purpose  the  extra-constitutional 
term  "electoral  count"  has  been  coined. 

In  the  endeavor  to  ascertain  the  design  of  the  system 
no  attention  has  been  paid  to  later  congressional  pre- 
cedents or  to  the  opinions  of  political  leaders  in  and  out 
of  Congress  in  the  past.  These  may  be  found  in  great 
abundance  in  the  volume  called  Presidential  Counts,  cited 
below.  They  are  misleading,  for,  I,  Congress  has  manu- 
factured or  been  led  into  its  own  precedents  for  the  pur- 
pose of  overthrowing  the  position  of  the  President  of  the 
Senate,  and,  2,  leaders  of  all  parties  have  been  interested 
in  giving  an  illegitimate  control  of  the  system  to  Con- 
gress, which  they  could  influence,  rather  than  to  the 


The  Electoral  College  and  its  History     517 

proper  official.  But  the  safe  guides,  the  plain  words  of 
the  Constitution  itself,  and  the  precedents  of  the  conven- 
tion of  1787  and  the  earlier  Congresses  and  Presidents  of 
the  Senate,  are  very  easy  of  access,  and  no  human  in- 
genuity can  extract  from  any  of  them  a  ground  for  any 
"objections,"  "withdrawal  to  consider  objections,"  or 
final  "  voting  upon  disputed  electoral  votes"  by  the 
Congress  of  the  United  States. 

The  design  of  the  system  was  to  debar  Congress  from 
all  control  over  the  electoral  system,  excepting  its  powers 
to  provide  for  uniformity  of  voting,  and,  always  by 
"general  law,"  for  the  authentication  of  the  State's 
appointment  of  electors  for  the  guidance  of  the  official 
canvasser;  to  place  upon  one  man  the  responsibility 
which  the  convention  well  knew  would  be  divided  up  and 
disregarded  by  Congress;  and,  for  further  safeguard,  to 
allow  Congress  to  witness  officially  the  execution  of  its 
own  general  law  by  the  President  of  the  Senate.  It  was 
unfortunate  that  the  Constitution  did  not  debar  Con- 
gress even  from  this  last  privilege,  from  which  alone 
it  has  gained  any  foothold  in  the  canvass,  and  have 
the  count  conducted  in  the  presence  of  the  Supreme 
Court ;  for  the  history  of  the  system  is  only  a  long 
record  of  gradual  usurpation  of  ungranted  powers  by 
Congress,  until  at  last  the  witness  has  climbed  into 
the  judge's  seat,  suspended  the  executive  officer,  and 
not  only  tries  the  law  and  the  facts,  but  executes  judg- 
ment as  well. 

III.  Perversion  of  the  System.  I.  1789-1821. — In 
this  first  period  there  is  no  instance  of  a  declaration  of 
the  electoral  canvass  by  any  other  power  than  the  Presi- 
dent of  the  Senate,  and  the  only  open  attempt  to  pervert 
the  system  was  the  Federalist  "Bill  of  1800,"  referred  to 
hereafter.  As  the  certificates  which  the  President  of  the 
Senate,  in  the  absence  of  an  authenticating  law,  decided 
to  be  valid  were  opened,  he  passed  them  to  the  tellers 


The  Slavery  Controversy 

appointed  by  the  two  Houses,  who  "counted"  them,  in 
the  proper  meaning  of  the  word.  The  certificates  of 
election,  which  were  made  out  by  order  of  Congress  from 
1797  until  1821,  all  contained  the  distinct  affirmation  that 
"the  President  of  the  Senate  did,  in  the  presence  of  the 
said  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  count  all  the  votes  of  the  electors." 
The  idea  had  not  yet  been  taken  up  that  Congress,  in  its 
capacity  as  a  witness,  had  the  right  to  "object"  to  the 
reception  of  particular  certificates.  Indeed  Congress  was 
formally  petitioned  to  do  so  in  1809  (in  the  case  of  Mas- 
sachusetts), and  refused.  No  case  of  double  or  contested 
returns  occurred,  but  a  number  of  informalities  are  noted 
in  the  record  by  the  tellers,  which  the  canvassing  officer 
seems  to  have  considered  unimportant.  Even  when  (in 
1809)  he  saw  fit  to  condone  so  important  a  defect  as  the 
absence  of  the  governor's  certificate,  the  witnesses  had 
or  took  no  power  to  interfere. 

In  1797  the  Legislature  of  Vermont  had  failed  to  pass 
any  law  prescribing  the  "manner  of  election"  of  the 
electors,  and  the  rejection  of  Vermont's  vote  would  have 
elected  Jefferson  and  defeated  Adams  for  the  Presidency. 
Nevertheless,  Adams  accepted  Vermont's  votes,  as  equity 
demanded,  and  thus  committed  the  "enormity"  of  count- 
ing himself  in,  without  any  apparent  thought  of  objection 
from  any  quarter.  Had  this  case  of  Vermont  happened 
under  the  modern  system  of  congressional  control,  only 
an  "electoral  commission"  could  have  decided  it,  for 
the  Senate  was  Federalist,  and  the  House  Republican 
(Democratic). 

In  1801  Jefferson,  though  in  a  case  not  so  vital  as  that 
of  Vermont,  imitated  Adams'  sexample.  An  amend- 
ment to  the  Constitution  was  introduced  in  Congress  in 
January  and  February,  1798,  for  the  purpose,  among 
others,  of  giving  Congress  the  very  power  of  decision 
upon  "contests"  which  it  now  exercises  without  such  an 


The  Electoral  College  and  its  History    519 

amendment,  but  this  was  not  adopted,  nor  was  it 
inserted  in  the  Twelfth  Amendment. 

But  although  the  forms  of  the  exercise  of  canvassing 
power  were  kept  up  during  this  period,  its  spirit  was  grow- 
ing weaker  at  every  count.  Its  first,  last,  and  persistent 
foe  has  been  the  Congress  of  the  United  States,  which 
the  convention  strove  so  hard  to  shut  out  from  any  in- 
fluence over  the  electors.  The  first  principal  inroad  upon 
its  essence  came  from  the  innocent  and  proper  appoint- 
ment of  "tellers"  by  the  two  Houses  "to  examine  the 
votes."  Though  these  tellers  had  only  the  arithmetical 
powers  common  to  any  or  all  examiners,  their  quadren- 
nial appointment  gradually  brought  into  existence  the 
idea  that  the  "count"  at  least,  whatever  its  nature  might 
be,  was  an  exclusive  prerogative  of  Congress;  and  the 
claim  of  power  to  "canvass"  was  only  one  step  farther. 
The  second  attack  was  the  organization  of  Congressmen 
of  both  parties  into  nominating  bodies,  whose  decisions 
bound  in  advance  the  action  of  the  electors,  annulled 
their  right  of  private  judgment,  and  reduced  them  to 
ciphers.1  When  this  had  brought  about,  in  1801,  its 
natural  result  of  a  tie  between  the  two  leading  candi- 
dates/ the  Twelfth  Amendment  was  adopted  requiring 
the  electors  to  vote  separately  for  President  and  Vice- 
President,  but  not  altering  the  system  otherwise.  This 
constitutional  recognition  of  the  existence  of  parties 
fixed  the  future  nullity  of  the  electors,  and  their  nullity 
gradually  obscured  the  position  of  the  President  of  the 
Senate. 

Before  1801  no  one  knew  positively  what  the  vote  of 
any  elector  was  until  the  certificate  was  opened;  after 
that  year  the  votes  of  the  electors  were  really  known  be- 
fore they  were  cast,  and  several  months  before  they  were 
formally  counted  by  the  President  of  the  Senate.  He, 
therefore,  while  he  continued  to  follow  precedents,  did 

1  See  Caucus,  Congressional.  *  See  Disputed  Elections,  I. 


520  The  Slavery  Controversy 

so  in  a  careless  and  perfunctory  way.  In  1805  Burr 
merely  broke  the  seals  of  the  certificates,  and  handed 
them  to  the  tellers  to  be  read  aloud  by  them.  In  1809 
the  idea  was  first  suggested  openly,  though  not  acted 
upon,  that  the  Houses  were  met  "for  a  special  purpose, 
to  count  out  the  votes,"  instead  of  "to  witness  the  can- 
vass of  the  votes." 

In  1817  the  first  "objection"  to  an  electoral  vote  was 
offered.  Indiana  had  been  admitted  as  a  State  after  the 
day  fixed  for  the  voting  of  the  electors.  John  W.  Tay- 
lor, of  New  York,  objected  to  the  counting  of  Indiana's 
votes,  and  the  Houses  separated  to  discuss  the  objection, 
as  they  could  not  do  while  sitting  in  the  same  room.  In 
both  Houses  resolutions  were  offered,  in  the  Senate  that 
Indiana  "had  a  right  to  vote  in  December  last,"  and  in 
the  House  that  Indiana's  votes  "ought  to  be  counted"; 
but  neither  House  adopted  them,  and  the  votes  of  In- 
diana were  counted  without  any  further  interference  by 
Congress.  But  the  precedent  was  remembered.  The 
announcement  of  Indiana's  vote,  following  the  debate 
upon  it  by  Congress,  was  accepted  as  propter  hoc,  as  well 
as  post  hoc ;  and  from  that  time  it  was  evident  that  the 
last  vestige,  even  pro  forma,  of  the  constitutional  func- 
tion of  the  President  of  the  Senate  was  at  the  mercy  of 
the  first  keen-witted  or  ignorant  politician  who  should 
suggest  that  Congress,  having  successfully  established  its 
exclusive  power  to  "count"  the  votes,  possessed  thereby 
the  power  "to  decide  what  were  votes." 

The  progressive  changes  of  language  in  the  messages 
from  the  two  Houses  announcing  their  readiness  to 
attend  the  count  are  worthy  of  notice.  They  are  as 
follows:  (1793-1805)  that  they  are  ready  to  meet  one 
another  "to  attend  at  the  opening  and  counting  of  the 
votes" ;  (1809  and  1813)  "to  attend  in  the  opening  and 
counting  of  the  votes"  ;  (1817)  "to  proceed  in  opening  the 
certificates  and  counting  the  votes,"  or  "to  proceed  to 


The  Electoral  College  and  its  History     521 

open  and  count  the  votes,"  the  former  being  that  of  the 
Senate,  and  the  latter  that  of  the  House.  These  changes 
are  landmarks. 

2.  1821-61. — In  1821  Missouri's  votes  were  disputed, 
and  for  the  first  time  in  our  history  the  power  to  canvass 
the  votes  was  claimed  for  Congress.  Said  Henry  Clay 
in  the  House:  "The  two  Houses  were  called  on  to 
enumerate  the  votes,  and  of  course  they  were  called  on 
to  decide  what  are  votes";  and  again:  "Would  this 
House  allow  that  officer  [the  President  of  the  Senate], 
singly  and  alone,  to  decide  the  question  of  the  legality 
of  the  votes  ?"  John  Randolph,  indeed,  denounced  the 
new  idea  of  congressional  control,  and  proclaimed  the 
electors  to  be  "as  independent  of  this  House  as  this 
House  was  of  them"  ;  but  his  voice  was  unheeded.  Con- 
gress had  found  its  opportunity,  and  seized  it,  to  doubly 
violate  the  Constitution,  first,  by  usurping  the  control  of 
the  canvass,  and  second,  by  refusing  to  fulfil  the  charge 
that  "the  votes  shall  then  be  counted."  The  votes  were 
not  really  counted.  The  Houses  ordered  the  President 
of  the  Senate  to  declare  that  "if  the  vote  of  Missouri 

were  to  be  counted,  the  result  would  be  for  A.  B.  

votes;  if  not  counted,  for  A.  B.  votes;  but  in  either 

event  A.  B.  was  elected."  This,  with  a  fine  irony,  might 
be  called  "counting  in  the  alternative  ";  and  this  was  the 
name  which  was  thenceforward  given  to  the  process. 

Congress  forgets  no  precedents  in  its  own  favor.  It 
had  now  discovered  that  the  President  of  the  Senate  was 
entrusted  with  no  higher  or  more  responsible  duty  than 
that  of  "opening"  the  certificates;  that  its  own  duty 
was  to  count  the  votes ;  but  that  the  canvass  was  under 
no  one's  constitutional  care.  At  first  Congress  con- 
tented itself  with  calling  attention  to  the  "casus  omissus  " 
which  its  own  ingenuity  had  conjured  up.  But  during 
all  the  rest  of  this  period,  while  considering  the  various 
methods  of  providing  for  the  casus  omissus  which  are 


522  The  Slavery  Controversy 

given  hereafter,  Congress  took  care  to  practically  cover 
the  case  by  asserting  and  enforcing  its  control  over  the 
canvass. 

In  1837  the  vote  of  Michigan  was  announced  "in  the 
alternative."  Objections  were  also  made  to  the  votes  of 
six  deputy  postmasters  who  had  been  chosen  electors, 
but  Congress  agreed  to  receive  them.  In  1857  the  vote 
of  Wisconsin  was  objected  to,  but  was  counted.  It  is 
often  asserted  that  the  President  of  the  Senate  counted 
it  of  his  own  constitutional  authority.  This  is  a  mistake ; 
his  own  statement  is  that  he  "disclaimed  having  assumed 
on  himself  any  authority  to  determine  whether  that  vote 
or  any  other  vote  was  a  good  or  a  bad  vote. ' '  He  simply 
cut  off  debate  while  the  two  Houses  were  together,  as  he 
was  bound  to  do ;  the  members  of  both  Houses  lost  their 
heads;  no  one  moved  for  a  separation  of  the  Houses;  and 
the  vote  of  Wisconsin  was  counted  irrevocably  in  the 
midst  of  great  disorder. 

At  every  election  after  1821  the  tellers  assume  more 
and  more  of  the  functions  of  the  President  of  the  Senate. 
In  1829  he  abandons  to  them  the  declaration  of  the  re- 
sult; in  1845  he  transfers  to  them  the  breaking  of  the 
seals;  and  the  climax,  for  this  period,  was  reached  in 
1861,  when  the  House  actually  appointed  a  committee 
to  report  a  mode  of  "canvassing  "  the  votes,  inserting  a 
new  word  instead  of  "examining,"  which  had  been  used 
since  1793. 

3.  1861-81. — With  the  canvass  of  1865  begins  the 
period  when  Congress,  without  pausing  to  debate,  began 
the  exercise  of  an  absolute  control  over  the  votes  of  the 
electors.  It  did  so  by  refusing  to  pass  the  general  law 
which  it  was  empowered  to  pass,  leaving  individual  cases 
to  be  dealt  with  as  party  needs  might  demand.  February 
6,  1865,  the  two  Houses,  both  under  Republican  control, 
passed  the  twenty-second  joint  rule,  which  provided  that 
any  vote  to  which  objection  should  be  made  should  be 


The  Electoral  College  and  its  History    523 

rejected,  unless  accepted  by  concurrent  vote  of  both 
Houses.  This  did  not  require  the  President's  signature, 
and  seems  to  have  been  put  into  this  shape  for  that 
reason.  No  previous  American  Congress  has  ever  been 
guilty  of  a  more  open  and  unnecessary  usurpation  than 
this.  The  act  of  February  8th  more  fairly  covered  the 
case  by  providing  that  the  seceding  States  named  were 
in  such  condition  on  Nov.  8,  1864,  that  no  valid  election 
was  held  therein,  and  that  no  votes  from  them  should  be 
received.  Even  here  the  vicious  propensity  of  Congress 
to  special  legislation  was  apparent.  Senator  Collamer's 
substitute,  giving  no  names  of  States,  but  referring  in 
proper  and  general  terms  to  "any  State  declared  to  be  in 
insurrection  by  virtue  of  the  act  of  July  13,  1861,"  was 
rejected. 

Under  the  continuing  twenty-second  joint  rule  the 
votes  of  Louisiana  were  counted  in  1869,  and  by  a  further 
concurrent  resolution  the  votes  of  Georgia  were  counted 
"in  the  alternative."  In  1873,  under  the  twenty-second 
rule,  the  vote  of  Louisiana  was  rejected  by  a  concurrent 
vote,  the  vote  of  Arkansas  and  three  votes  of  Georgia 
for  Horace  Greeley  (dead)  were  rejected  by  a  non- 
concurrence,  and  the  votes  of  Texas  and  Mississippi  were 
accepted.  January  20,  1876,  the  House  having  become 
Democratic,  the  Senate  repealed  the  twenty-second 
joint  rule.  The  two  Houses  were  therefore  left  to  meet 
the  election  of  1876'  without  any  law  on  the  subject. 

A  very  brief  consideration  of  the  facts  under  which  the 
dispute  as  to  the  election  of  1876  arose  will  show  that  no 
such  dispute  could  have  arisen  if  Congress  had  fulfilled 
its  plain  duty  under  the  Constitution,  I,  by  passing  a 
"general  law,"  for  the  full  authentication  of  the  electoral 
votes  from  the  States  to  the  President  of  the  Senate,  and 
2,  by  keeping  its  own  hands  off  the  canvass.  The 
"count,"  in  its  strict  and  proper  meaning,  might  then 

1  See  Disputed  Elections,  IV. 


524  The  Slavery  Controversy 

have  been  left  safely  to  the  operations  of  the  first  rule  of 
arithmetic.  But  this  was  not  the  time  for  a  great  consti- 
tutional reform ;  the  fifty  years'  usurpation  by  Congress 
of  power  to  decide  each  case  arbitrarily  as  it  arose  had 
left  the  country  with  no  law  to  rely  upon  ;  the  passage  of 
a  general  law  by  Congress  was  then  an  impossibility  ;  and 
it  is  matter  for  congratulation  that  the  lottery  which 
finally  decided  the  presidential  election  was  at  least 
decently  clothed  in  the  forms  of  law.1 

Of  the  utter  illegality  of  the  electoral  commission,  of 
the  lack  of  power  in  Congress  to  take  the  appointment 
of  the  electors  away  from  the  States,  there  can  be  no 
doubt;  but  there  can  be  no  more  doubt,  on  the  other 
hand,  that  Congress  committed  no  greater  illegality  in 
passing  the  electoral  commission  act  than  in  assuming  to 
"canvass"  the  votes  in  1865,  1869,  and  1873,  under  the 
twenty-second  joint  rule.  President  Hayes  was  just  as 
illegally  "counted  in  "  as  Presidents  Lincoln  and  Grant, 
and  no  more  so  than  they. 

In  1880  Congress  again  counted  the  vote  of  Georgia 
"in  the  alternative."  It  had  not  yet,  nor  has  it  yet  in 
1882,  passed  any  general  law  to  govern  the  President  of 
the  Senate  in  his  canvass  of  the  votes,  and  apparently 
intends  still  to  persist  in  its  traditional  policy  of  waiting 
for  disputed  electoral  votes,  then  claiming  that  there  is 
no  general  law  to  cover  the  case,  and  finally  usurping  the 
power  to  decide. 

IV.  Legal  Limitations. — The  constitutional  provisions 
in  regard  to  the  electors  will  be  found"  under  Article  II., 
§  i,  Article  IV.,  §  i,  and  Amendment  XII.  In  pur- 
suance of  its  powers  to  secure  uniformity  of  voting,  and 
to  provide  for  authentication  of  State  records,  Congress 
has  enacted  various  provisions  to  govern  the  action  of 
the  electors.  The  act  of  March  i,  1792,  provided:  i, 
that  the  electors  should  be  appointed  in  each  State  in 

1  See  Electoral  Commission.  *  See  Constitution. 


The  Electoral  College  and  its  History    525 

1792,  and  every  four  years  thereafter,  within  thirty-four 
days  preceding  the  first  Wednesday  in  December;  2,  that 
they  should  meet  and  vote  on  the  first  Wednesday  in 
December,  and  transmit  their  votes  as  heretofore  de- 
scribed; 3,  that  the  "executive  authority  "  of  each  State 
should  certify  three  lists  of  the  electors,  to  be  annexed 
by  them  to  their  certificates ;  4,  that  the  Secretary  of 
State  should  send  for  the  third  list,  if  the  first  two  were 
not  received  before  the  first  Wednesday  in  January;  5, 
that  Congress  should  be  in  session  on  the  second  Wednes- 
day in  February,  "that  the  certificates  shall  then  be 
opened,  the  votes  counted,  and  the  persons  who  shall  fill 
the  offices  of  President  and  Vice-President  ascertained 
and  declared  agreeably  to  the  Constitution  "  ;  6,  that  the 
certificates  shall  be  delivered  to  the  Secretary  of  State  in 
case  there  is  no  President  of  the  Senate  at  the  capital ;  7, 
that  the  electoral  messengers  shall  receive  twenty-five 
cents  per  mile  by  the  most  usual  road ;  8,  that  a  fine  of 
$1000  shall  be  inflicted  for  neglect  to  deliver  the  lists ;  the 
remaining  sections  (9-12)  relate  to  the  succession  to  the 
Presidency.  The  act  of  January  23,  1845,  fixed  the  day 
for  the  appointment  of  the  electors  as  the  Tuesday  after 
the  first  Monday  of  November,  and  empowered  each 
State  to  provide  for  filling  vacancies  in  its  "college"  of 
electors,  and  to  appoint  a  subsequent  day  for  a  choice 
of  electors  when  the  first  election  has  not  resulted  in  a 
choice. 

V.  Special  Enactments. —  i.  The  act  of  March  26,  1804, 
was  passed  because  of  the  doubt  whether  the  proposed 
Twelfth  Amendment  would  be  ratified  in  time  to  control 
the  approaching  presidential  election.  It  permitted  elec- 
tors who,  at  their  time  of  meeting,  had  not  been  notified 
of  the  ratification  of  the  amendment,  to  vote  twice,  once 
according  to  the  original  mode  of  the  Constitution,  and 
once  according  to  the  amendment,  with  the  proviso  that 
only  those  certificates  should  be  finally  valid  which  should 


526  The  Slavery  Controversy 

be  in  accordance  with  the  Constitution  as  it  should  be  in 
force  on  the  day  of  voting.  This,  though  it  seems  to 
have  been  legitimate,  as  a  "general  law,"  was  made 
obsolete  by  the  ratification  of  the  amendment  before  the 
election. 

2.  It  has  always  been  difficult  for  the  upholders  of  con- 
gressional control  over  the  canvass  to  give  a  name  to  their 
manner  of  action.  They  do  not  act  as  a  legislative  body, 
for  the  President's  veto  power  is  absent;  nor  as  a  joint 
meeting,  for  the  separate  existence  and  organization  of 
the  two  Houses  is  carefully  preserved;  and  yet,  if  their 
independence  is  maintained,  their  control  of  the  canvass 
is  manifestly  and  absolutely  dependent  on  the  single 
chance  of  the  political  agreement  of  the  two  Houses,  for 
if  they  are  controlled  by  different  parties  they  cannot 
agree  in  the  canvass  of  disputed  votes.  No  man  can  say, 
therefore,  whether  the  two  Houses  are  to  "agree"  in 
accepting  or  in  rejecting  a  disputed  vote;  and  this  one 
consideration  is  enough  to  stamp  a  congressional  "can- 
vass" as  a  hopeless  absurdity.  The  strong  probability  l 
that  two  of  the  late  seceding  States  would  attempt  to  re- 
organize themselves  without  congressional  control  caused 
the  introduction  and  passage,  February  6,  1865,  of  a  "joint 
rule,"  the  twenty-second,  which  described  the  manner  in 
which  the  two  Houses  intended  to  canvass  the  votes.  It 
provided,  outside  of  the  directions  for  organization,  that 
"no  vote  objected  to  shall  be  counted  except  by  the  con- 
current votes  of  the  two  Houses,"  thus  practically  giving 
the  power  to  reject  a  State's  vote  not  even  to  ' '  Congress, 
but  to  either  House — an  absurdity  which  is  only  one  of 
the  least  in  the  idea  of  a  congressional  canvass.  Under 
this  twenty-second  joint  rule  the  electoral  votes  were 
canvassed  in  1869  and  1873,  but  it  was  abolished  in  1876, 
as  above  stated,  when  the  two  Houses  had  fallen  to  oppo- 
site parties. 

1  See  Reconstruction. 


The  Electoral  College  and  its  History    527 

3.  The  act  of  February  8,  1865,  enacted  that  no  elec- 
toral votes  should  be  received  or  counted  from  the  States 
of  Virginia,  North  Carolina,   South  Carolina,   Georgia, 
Florida,  Alabama,  Mississippi,  Louisiana,  Texas,  Arkan- 
sas, and  Tennessee.    The  reason  assigned  in  the  preamble 
was,  that  these  States  had  rebelled  against  the  Govern- 
ment and  were  in  such  condition  on  November  8,  1864, 
that  no  valid  election  was  held  therein.     President  Lin- 
coln signed  it  "in  deference  to  the  views  of  Congress," 
disclaiming ' '  any  opinion  on  the  recitals  of  the  preamble. 

4.  The  count  of  1877  brought  the  touchstone  which, 
when  applied,  will  always  expose  the  inherent  fallacy  of 
a  canvass  by  two  independent  bodies.     The  Senate  was 
Republican  and  the  House  was  Democratic.     The  diffi- 
culty was  evaded  in  this  case  by  the  passage  of  the  Elec- 
toral Commission  Act.    It  passed  the  Senate,  January  25, 
1877,  by  a  vote  of  47  (26  Democratic,  21  Republican)  to 
17  (i  Democratic,  16  Republican);  the  House,  January 
26th,  by  a  vote  of  191  (159  Democratic,  32  Republican) 
to  86  (18  Democratic,  68  Republican);  and  was  approved 
January  29th.     The  germ  of  its  idea  will  be  found  in  the 
"Bill  of  1800,"  hereafter  referred  to.     Both  laws  are  open 
to  the  same  fatal  objection.     They  are  not  the  "general 
laws"  which  Congress  is  empowered  to  pass  touching  the 
authentication  of  State  records,  including  electoral  ap- 
pointments;  they  do  not  come,  directly  or  indirectly, 
under  any  power  which  Congress  is  authorized  to  exer- 
cise; and  they  are  simply  refusals  by  Congress  to  give  up 
permanently  its  usurpation  of  the  power  to  canvass,  even 
under  circumstances  which  show  that  the  exercise  of  the 
power   may  at  any  moment    become  impossible.     The 
fiction  that  Congress  was  a  more  trustworthy  canvassing 
agent  than  the  President  of  the  Senate  was  long  ago 
exploded;  the   experience    of    1877  shows   that    extra- 
congressional  agents  are  no  better  than  Congress;  and 
the  lesson  of   experience    would  seem   to  be   that  the 


528  The  Slavery  Controversy 

canvass  should  be  restored  to  the  only  agent  from  whom  a 
decision,  and  a  prompt  decision,  is  always  certain — the 
President  of  the  Senate.  Nevertheless,  all  the  remedies 
now  (1882)  under  consideration  retain  the  vice  of  per- 
mitting "objections"  to  electoral  votes  and  decision,  in 
one  form  or  other,  by  Congress.1 

VI.  Proposed  Legislation.  —  i.  The  Bill  of  1800.  Janu- 
ary 23,  1800,  while  the  Federalists  controlled  both  Houses 
of  Congress,  Senator  James  Ross,  of  Pennsylvania,  intro- 
duced a  bill  to  regulate  the  electoral  count.  It  provided, 
in  brief,  for  the  formation  of  a  "grand  committee"  of 
six  Senators,  six  Representatives,  and  the  Chief  Justice, 
with  power  to  examine  and  decide  finally,  in  secret  ses- 
sion, all  disputes  and  objections  as  to  electoral  votes.  Of 
the  four  members  of  the  convention  which  framed  the 
Constitution  who  were  then  Senators,  the  bill  was  voted 
for  by  only  one,  Jonathan  Dayton,  who  had  taken  no 
real  part  in  the  deliberations  of  the  convention  itself. 
The  other  three,  Charles  Pinckney,  Langdon,  and  Bald- 
win, denounced  and  opposed  the  bill  to  the  end.  Pinck- 
ney, in  his  very  able  speech  of  March  28,  1800,  distinctly 
declared  the  design  of  the  Constitution  to  have  been  that 
"Congress  shall  not  themselves,  even  when  in  conven- 
tion, have  the  smallest  power  to  decide  on  a  single  vote." 
The  bill  passed  the  Senate  the  same  day,  by  a  vote  of  16 
to  12.  In  the  House,  John  Marshall,  Bayard,  and  other 
Federalists  united  with  the  Democrats  in  emasculating 
the  bill  by  giving  the  "grand  committee"  power  only  to 
take  testimony  and  report  it  to  the  two  Houses  without 
expressing  any  opinion  on  it ;  the  return  was  still  to  be 
accepted,  unless  both  Houses  concurred  in  rejecting  it ; 
and  no  provision  was  made  for  double  returns.  May 
8th,  the  Senate  amended  by  providing  that  a  return  ob- 
jected to  should  be  rejected  unless  both  Houses  con- 

1  For  the  important  features  of  the  act,  see  Electoral  Commission  ;  for 
the  action  of  Congress  under  it,  see  Disputed  Elections,  IV. 


The  Electoral  College  and  its  History    529 

curred  in  admitting  it.     Both  Houses  refused  to  recede, 
and  the  bill  was  lost. 

2.  The  Benton  Amendment. — December  u,  1823,  Sen- 
ator Thomas  H.  Benton  introduced  an  amendment  to  the 
Constitution  providing  that  each  legislature  should  di- 
vide its  State  into  electoral  districts ;  that  the  voters  of 
each  district  should  vote  "in  their  own  proper  persons" 
for  President  and  Vice-President;  that  a  majority  in  an 
electoral   district  should  give  a  candidate  the  electoral 
vote  of  the  district;   that  the  returning  officers  should 
decide  in  case  of  a  tie  vote  in  any  district ;  and  that,  if 
no  candidate  should  have  a  majority  of  all  the  electoral 
votes,  the  House  should  choose  the  President,  and  the 
Senate  the  Vice-President,  as  at  present.     The  amend- 
ment at  this  session  was  not  acted  upon. 

Benton  subsequently  changed  it  by  providing  for  a 
second  popular  election  in  case  of  a  tie,  and  in  case  of  a 
further  tie,  for  the  choice  of  the  person  having  the  great- 
est number  of  votes  in  the  greatest  number  of  States.  It 
was  introduced  in  this  form,  June  15,  1844,  but  was  not 
acted  upon. 

3.  The  Van  Buren  and  Dickerson  Amendments. — These 
were  introduced  in  the  Senate,  the  latter  December  i6th, 
by  Mahlon  Dickerson,  of  New  Jersey,  and  the  former 
December  24,  1823,  by  Martin  Van  Buren,  of  New  York. 
Both  aimed  to  change  the  Twelfth  Amendment  mainly 
by  requiring  the  electors  to  be  chosen  by  districts,  in- 
stead of  by  general  ticket.     In  the  case  of  a  tie  vote  the 
Dickerson  amendment  left  the  choice  of  President  to  the 
two  Houses  in  joint  meeting,  and  of  Vice-President  to 
the  Senate ;  the  Van  Buren  amendment  required  the  elect- 
ors to  be  immediately  convened  by  proclamation  of  the 
President,  and  to  choose  between  the  candidates  having  an 
equal  number  of  votes,  the  final  choice,  in  case  of  another 
tie,  being  left  as  at  present.   Neither  amendment  provided 
for  disputed  or  double  returns;  and  neither  was  acted  upon. 

VOL.  H. 34. 


53°  The  Slavery  Controversy 

4.  The  McDuffie  Amendment. — This  was  introduced  in 
the  House,  December  22,  1823,  by  George  McDuffie,  of 
South  Carolina,  as  chairman  of  a  select  committee  on  the 
subject.     It  provided  that  electors  should  be  chosen  by 
districts  assigned  by  the  legislatures,    or  by  Congress 
in  default  of  action  by  any  legislature;  that  the  votes 
should  be  opened  and  counted  as  at  present ;  that  in  case 
of  a  tie  the    President  of  the  Senate  by  proclamation 
should  reconvene  the  electors ;  that  the  electors  should 
then    choose   between  the  tie  candidates;   that,  in  the 
event  of  another  tie,  the  two  Houses  of  Congress,  voting 
individually  and  not  by  States,  should  choose  the  Presi- 
dent ;  that,  if  no  choice  was  made  on  the  first  ballot,  the 
lowest  candidate  on  the  electoral  list  should  be  dropped 
at  each  ballot  until  but  two  remained ;  that,  in  case  of  a 
final  tie,  the  candidate  who  had  the  highest  vote  at  the 
first,  or,  if  not  at  the  first,  at  the  second  meeting  of  the 
electors,  should  be  chosen ;  that,  if  neither  of  these  pro- 
visions applied,  the  two  Houses  should  continue  balloting 
until  a  President  was  chosen ;  and  that  the  Vice-President 
should  be  chosen  by  the  Senate,  in  case  of  a  tie  vote  for 
that  office.     This  amendment  was  debated  during  the 
session,  but  was  not  acted  upon.     April  i,  1826,  in  the 
House,    McDuffie   obtained  a  vote  on  his  resolutions. 
The  first,  that  the  Constitution  ought  to  be  so  amended 
as  to  keep  the  election  of  President  and  Vice-President 
from  Congress,  was  carried  by  a  vote  of  138  to  52;  the 
second,  in  favor  of  the  "district  system"  was  lost  by  a 
vote  of  90  to  102 ;  and  the  subject  was  dropped. 

5.  The  Van  Bur  en  Bill. — April  19,   1824,  the  Senate 
passed  Van  Buren's  bill,  providing  that,  if  objection  were 
made  to  a  return,  the  return  should  be  counted  unless 
the  Houses,  voting  separately,  concurred  in  rejecting  it. 
The  bill  was  not  acted  on  by  the  House. 

6.  The  Gilmer  Amendment. — In  each  of  his  messages 
President  Jackson  recommended  to  Congress  the  passage 


The  Electoral  College  and  its  History    531 

of  an  amendment  giving  the  choice  of  President  and  Vice- 
President  to  the  people.  January  31,  1835,  in  the  House 
George  R.  Gilmer,  of  Georgia,  chairman  of  a  select  com- 
mittee on  the  subject,  reported  an  amendment.  It  com- 
bined the  direct  choice  by  the  people,  and  the  second 
popular  election  in  case  of  a  tie,  of  the  Benton  amendment, 
with  a  provision  that,  in  case  of  the  death  of  the  suc- 
cessful candidate  at  the  second  popular  election,  the  Vice- 
President  "then  in  office"  should  be  President.  In  case  of 
a  tie  at  the  second  popular  election  the  President  was  to  be 
chosen  by  the  House  and  the  Vice-President  by  the  Senate 
as  at  present.  This  amendment  was  not  acted  upon. 

7.  The  Morton  Amendment. — May  28,  1874,  Senator 
Oliver  P.  Morton,  of  Indiana,  chairman  of  the  Committee 
on  Elections,  reported  an  amendment  in  seven  sections. 
It  provided  that  the  States  should  be  divided  into  elec- 
toral districts,  and  that  a  majority  of  the  popular  vote  of 
a  district  should  give  a  candidate  one  "presidential  vote"  ; 
that  the  highest  number  of  presidential  votes  in  a  State 
should  give  a  candidate  two  votes  at  large;  that  the 
highest  number  of  presidential  votes  in  the  country 
should  elect  a  candidate;  that  an  equal  division  of  the 
popular  vote  in  a  district  should  nullify  the  presidential 
vote  of  the  district,  an  equal  division  of  the  presidential 
votes  in  a  State  should  divide  the  two  votes  at  large,  or 
should  nullify  them,  if  there  was  an  equal  division  be- 
tween three  candidates ;  that  the  Vice-President  should 
be  chosen  in  the  same  manner ;  that  Congress  should  pro- 
vide rules  for  the  election,  and  tribunals  for  the  decision 
of  contests ;  and  that  districting  should  be  done  by  State 
Legislatures,  but  that  Congress  might  "make  or  alter  the 
same."  In  debate  it  was  understood  that  Congress  could 
either  adopt  the  existing  courts  as  tribunals,  or  create 
new  ones  for  the  purpose  of  deciding  contests.  The 
amendment  was  debated  through  the  winter  of  1875,  but 
was  not  finally  acted  upon. 


532  The  Slavery  Controversy 

8.  The  Morton  Bill. — February  25,  1875,  Senator  Mor- 
ton introduced  a  bill  to  govern  the  electoral  count.     It 
followed  the  twenty-second  joint  rule,  except  that  it  pro- 
vided that,  if  objection  were  made  to  any  return,  that  re- 
turn should  be  counted,  unless  rejected  by  a  concurrent 
vote  of  both  Houses,  and  that,  in  case  of  a  double  return, 
that  return  should  be  counted  which  the  two  Houses, 
acting  separately,  should  decide  to  be  the  true  one.    This 
was  the  first  provision  in  our  history  for  double  returns. 
In  debate  it  was  agreed  that  the  vote  of  the  State  would 
be  lost  in  case  of  a  disagreement  of  the  Houses  on  a 
double  return.     The  bill  was  passed  by  the  Senate,  and 
not  acted  upon  by  the  House.     At  the  next  session  it 
was  brought  up  again,  December  8,  1875,  debated,  until 
March  24,  1876,  and  then  passed  by  a  party  vote  of  32 
to  26  Democrats  in  the  negative.    The  same  day  a  motion 
to  reconsider  was  entered  by  a  Democratic  Senator,  and 
carried  April  iQth.     It  was  then  debated  until  August 
5th,    and   dropped.      Had   it   become   a   law   it   would 
have  seated  the  Democratic  candidates  at  the  following 
election. 

9.  The  Buckalew  Amendment. — This,  drawn  up  by  ex- 
Senator  Charles  R.  Buckalew,  of  Pennsylvania,  was  intro- 
duced in  the  House  February  7,  1877,  by  Levi  Maish,  of 
the  same  State.     It  provides  for  direct  popular  vote  by 
electoral  districts,  and  assigns  to  each  candidate  a  propor- 
tion  of  the  State's  electoral  vote  corresponding  to  his 
proportion  of  the   State's  popular  vote.     It  has  never 
been  acted  upon. 

10.  The  McMillan  System. — This  system  contemplates 
the  nomination  of  presidential  candidates  by  State  legis- 
latures, each  nomination  to  specify  whether  it  shall  be 
classed  in  "the  first  presidential  canvass,"   or  in  "the 
second  presidential  canvass" ;  an  election  by  a  majority 
of  the  general  popular  vote;  and,  in  default  of  a  popular 
majority,  a  second  general  election,  to  be  confined  to  the 


The  Electoral  College  and  its  History    533 

highest  candidate  in  each  "presidential  canvass."  This 
last  term  is  another  phrase  for  political  party,  and  its 
introduction  is  intended  to  prevent  the  possible  second 
election  from  being  confined  to  two  candidates  of  the 
same  party.  The  system  has  only  been  unofficially  pro- 
posed in  Mr.  McMillan's  work  cited  at  the  close  of  this 
chapter. 

ii.  The  Edrmmds  Bill. — This  bill  to  regulate  the  elec- 
toral count,  introduced  in  1878  by  Senator  George  F. 
Edmunds,  of  Vermont,  provided  that  the  electors  should 
be  appointed  on  the  first  Tuesday  of  October  and  should 
meet  and  vote  on  the  second  Monday  of  the  following 
January;  that  each  State  "may  provide"  by  law  for  the 
trial  of  contests,  and  the  decision  shall  be  conclusive  of 
the  lawful  title  of  the  electors ;  that,  if  there  is  any  dis- 
pute as  to  the  lawfulness  of  the  State  tribunal,  only  that 
return  shall  be  counted  which  the  two  Houses,  acting 
separately,  shall  concur  in  deciding  to  be  supported  by 
the  lawful  tribunal ;  that,  if  there  are  double  returns  from 
a  State  which  has  not  decided  the  title  of  the  electors, 
only  that  return  shall  be  counted  which  the  two  Houses, 
acting  separately,  shall  decide  to  be  legal;  and  that,  if 
any  objections  are  made  to  any  single  return,  it  shall  not 
be  rejected  except  by  the  affirmative  vote  of  both  Houses. 
The  bill  was  not  passed.  It  was  introduced  again,  De- 
cember 19,  1 88 1,  by  Senator  George  F.  Hoar,  of  Massa- 
chusetts, but  has  not  yet  (1882)  been  passed.  The  bill 
would  be  perfectly  in  accord  with  the  design  of  the  elec- 
toral system  if  its  code  of  rules  had  been  still  more  care- 
fully drawn  and  made  obligatory  upon  the  President  of 
the  Senate  alone ;  but,  by  reserving  to  the  two  Houses, 
even  concurrently,  the  power  at  their  own  partisan  pleas- 
ure to  adjudicate  special  cases,  and  even  over-ride  their 
own  previous  enactments,  it  retains  the  vicious  principle 
which  has  been  the  source  of  all  our  difficulties.  The 
difficulty  lies,  not  in  the  electoral  system,  but  in  the 


534  The  Slavery  Controversy 

determination  of  Congressmen  of  both  Houses,  and  of 
all  parties,  to  meddle  with  a  duty  which  the  Constitution 
distinctly  intended  to  free  from  their  control. 

VII.  Incidental  Features. — In  1789  no  electoral  votes 
were  cast  by  New  York,  Rhode  Island,  or  North  Caro- 
lina. The  two  latter  States  had  not  yet  ratified  the  Con- 
stitution. In  New  York  the  Anti-Federalists  of  the 
Assembly  wished  to  choose  electors  by  joint  ballot;  the 
Federalists  of  the  Senate  insisted  upon  having  half 
the  electors,  and  no  electoral  law  was  passed.  Electors 
were  generally  chosen  by  the  legislatures  in  all  the  States 
until  about  1820-24.  In  Maryland,  North  Carolina,  and 
Virginia  they  were  chosen  by  popular  vote  in  electoral 
districts.  In  Massachusetts  the  people  of  each  congres- 
sional district  nominated  three  electors,  of  whom  the 
legislature  chose  one,  and  the  two  electors  at  large. 
Occasionally  the  district  system  was  adopted  for  a  time 
by  other  States,  but  was  altered  as  party  interest  de- 
manded, as  in  1812,  when  the  Democratic  Legislatures  of 
Vermont  and  North  Carolina  and  the  Federalist  Legisla- 
ture of  New  Jersey  repealed  the  law  for  the  choice  of 
electors  by  popular  vote  just  before  the  day  fixed  for 
the  election,  and  assumed  the  choice  themselves.  The 
following  Legislature  of  North  Carolina  re-established 
the  district  system,  and  recommended  the  adoption  of 
the  amendment  subsequently  known  as  the  "Benton 
Amendment." 

In  1800  the  Democratic  Assembly  of  Pennsylvania 
wished  to  choose  electors  by  joint  ballot,  in  order  to 
secure  the  whole  number,  while  the  Federalist  Senate 
insisted  on  having  seven  of  the  fifteen  electors.  A  bill 
to  that  effect  was  passed,  December  i,  1800,  just  in  time 
to  enable  the  electors  to  vote,  December  $d.  The  "Bill 
of  1800,"  heretofore  mentioned,  was  aimed  at  Pennsyl- 
vania's vote.  In  South  Carolina,  in  1800,  the  legislature 
which  was  to  choose  the  electors  was  extremely  doubtful, 


The  Electoral  College  and  its  History    535 

even  after  its  meeting.  The  Democrats  offered  to  com- 
promise on  Jefferson  and  Pinckney,  which  would,  as  it 
proved,  have  made  Pinckney  Vice-President ;  but  the 
Federalists  stood  to  their  whole  ticket  and  lost  it,  83  to 
68.  At  the  count  of  the  votes  in  February,  1801,  Jeffer- 
son, the  President  of  the  Senate,  counted  the  votes  of 
Georgia  for  himself  and  Burr,  as  equity  demanded,  al- 
though the  tellers  called  his  attention  to  the  absence  of 
any  certificate  that  the  electors  had  voted  for  them.  The 
votes  of  Georgia,  however,  were  not  essential  to  the 
result.1 

In  1816  three  electors  in  Maryland  and  one  in  Dela- 
ware, belonging  to  the  almost  extinct  Federal  party, 
neglected  to  vote,  and  in  1820  Pennsylvania,  Tennessee, 
and  Mississippi  each  lost  an  elector  by  death.2  One  elec- 
tor in  New  Hampshire  voted  for  John  Quincy  Adams  for 
President,  so  that  Monroe  did  not  have  a  unanimous 
vote.  Missouri,  whose  final  admission  only  dated  from 
August  10,  1821,  chose  presidential  electors  in  Novem- 
ber, 1820,  and  their  votes  were  "counted  in  the  alterna- 
tive," as  before  mentioned. 

In  1824  the  electors  made  no  choice.3  The  electors 
were  now  chosen  by  popular  vote  in  all  the  States  ex- 
cepting Delaware,  Georgia,  Louisiana,  New  York,  South 
Carolina,  and  Vermont,  where  they  were  still  chosen  by 
the  legislatures.  In  1828  and  subsequent  years  electors 
were  chosen  by  popular  vote  in  all  the  States  excepting 
South  Carolina,  where  the  legislature  chose  them  until 
1868. 

Michigan,  which  was  not  admitted  until  January  26, 
1837,  chose  presidential  electors  in  November,  1836,  and 
their  votes  were  "counted  in  the  alternative."  No  choice 
of  a  Vice-President  was  made  by  the  electors.*  In  1856 

1  For  the  tie  vote  and  its  results,  see  Disputed  Elections,  I. 
3  See  Electoral  College.  3  See  Disputed  Elections,  II. 

4  See  Disputed  Elections,  III. 


536  The  Slavery  Controversy 

the  Wisconsin  electors  were  prevented  by  a  violent  snow- 
storm from  meeting  and  voting  on  the  day  fixed  by  law 
(December  3d),  and  met  and  voted  December  4th.  In 
counting  the  votes,  February  n,  1857,  objection  was 
made  to  Wisconsin's  vote.  The  President  of  the  Senate, 
Senator  Mason,  of  Virginia,  decided  debate  to  be  out  of 
order;  no  motion  to  separate  was  made;  and  the  vote  of 
Wisconsin  was  counted.  In  1865  the  President  of  the 
Senate,  "in  obedience  to  the  law  of  the  land"  (the  act  of 
1865),  refused,  when  requested,  to  open  the  certificates 
sent  by  Louisiana  and  Tennessee. 

In  1869  the  votes  of  Mississippi,  Texas,  and  Virginia, 
which  had  not  been  reconstructed,  were  not  received,  and 
the  votes  of  Louisiana  were  counted.  The  votes  of 
Nevada  were  objected  to,  but  the  President  of  the  Senate 
refused  to  entertain  the  objection,  on  the  ground  that  it 
was  made  too  late.  Georgia,  which  had  been  recon- 
structed, had  proceeded  to  deny  the  eligibility  of  negroes 
to  the  legislature.  Her  electors  had  voted  on  the  second 
Wednesday  in  December,  as  required  by  State  law  passed 
under  the  Confederacy,  instead  of  the  first  Wednesday, 
as  required  by  law,  and  on  this  ground  it  was  known  that 
objections  would  be  made  to  their  votes.  It  was  there- 
fore arranged  by  joint  resolution  to  "count  them  in 
the  alternative."  Nevertheless,  objection  was  made  to 
Georgia's  vote.  It  was  sustained  by  the  House,  and 
overruled  by  the  Senate,  and  the  President  of  the  Senate 
decided  that  they  must  be  counted  in  the  alternative, 
decided  debate  out  of  order,  and  refused  to  allow  an  ap- 
peal from  his  decision.  The  vote  was  finally  made  up  in 
the  midst  of  disgraceful  disorder. 

In  1873  double  returns  appeared  for  the  first  time,  from 
Louisiana  and  Arkansas.  The  two  Houses  concurred  in 
counting  the  votes  of  Texas  (objected  to  for  want  of  the 
Governor's  certificate),  and  of  Mississippi  (objected  to  for 
want  of  a  certificate  that  the  electors  had  voted  by  ballot), 


The  Electoral  College  and  its  History    537 

and  in  rejecting  the  vote  of  Arkansas,  for  want  of  the 
Governor's  certificate.  By  disagreement  of  the  two 
Houses  three  votes  of  Georgia  for  Greeley  (dead),  and 
the  entire  vote  of  Louisiana  were  rejected. 

In  1877  the  result  of  the  electoral  vote  was  disputed. 
The  facts  and  mode  of  settlement  are  given  elsewhere.1 
In  1 88 1  the  electoral  votes  of  Georgia,  which  were  still 
cast  on  the  wrong  day,  were  "counted  in  the  alternative." 

DISPUTED  ELECTIONS.— When  the  electors  have  failed 
to  give  any  one  a  majority  of  all  the  votes,  the  House  of 
Representatives,  voting  by  States,  and  each  State  having 
one  vote,  was  empowered  by  the  original  terms  of  the 
Constitution  to  choose  a  President  from  the  two  high- 
est candidates  on  the  list.  Amendment  XII.  enlarged 
the  limits  of  choice  to  three  candidates,  and  directed  the 
Senate  in  like  case  to  choose  a  Vice-President  from  the 
two  highest  candidates  for  that  office.*  There  have  been 
three  such  disputed  presidential  elections  in  our  history, 
and  one  (1876)  in  which  the  majority  of  electoral  votes 
was  disputed. 

I.  (1800). — In  the  election  of  1796  it  had  been  gener- 
ally agreed  by  the  leading  men  of  both  parties,  as  a 
concession  to  the  personal  dignity  and  feelings  of  the 
candidates,  that  Jefferson  and  Burr,  and  Adams  and 
Pinckney,  should  receive,  as  far  as  possible,  equal  con- 
sideration from  the  electors.  The  independent  judgment 
of  the  electors  prevented  the  faithful  observance  of  this 
agreement,  and  it  was  more  formally  renewed  by  a  con- 
gressional caucus  of  each  party  in  1800,  apparently  with- 
out reflection  that  a  rigid  adherence  to  it  by  both  parties 
would  certainly  result  in  no  choice,  since  only  the  highest 
candidate  on  the  list  became  President.  Both  parties 
adhered  to  the  agreement,  except  that  one  Federalist 

1  See  Electoral  Commission  ;  Disputed  Elections,  IV. 
*  See  Constitution,  III.;  Executive. 


538  The  Slavery  Controversy 

elector  (in  Rhode  Island)  was  acute  enough  to  give  his 
second  vote  to  John  Jay.  Burr,  it  has  been  charged, 
on  doubtful  authority,  endeavored  in  like  manner  to  gain 
one  vote  on  Jefferson  in  New  York.  February  n,  1801, 
Jefferson  and  Burr  were  found  to  have  a  tie  vote,  73  each, 
and  the  House,  in  which  the  Federalists  had  a  majority 
both  of  members  and  of  States,  proceeded  to  choose  be- 
tween the  two  Democrats. 

In  anticipation  the  House  had  settled,  February  Qth, 
the  rules  for  balloting,  which  became  precedents  for  1824. 
Their  most  important  provisions  were  as  follows : 

"  2.  That  the  Senate  should  be  admitted.  3.  That  the 
balloting  should  not  be  interrupted  by  any  other  business.  4. 
That  the  house  should  not  adjourn  until  a  choice  was  made. 
5.  That  the  balloting  should  be  in  secret  session.  6.  That 
the  Representatives  should  sit  by  States;  that  each  State 
should  ballot  separately,  cast  its  ballot  in  duplicate,  marked 
with  the  name  of  its  choice  or  with  the  word  '  divided,'  into 
its  own  ballot  box;  that  two  general  boxes  should  be  provided, 
the  duplicate  State  ballots  going  into  separate  boxes;  that 
each  State  should  have  a  teller;  that,  if  the  results  of  the  count 
of  the  two  boxes  tallied  the  result  of  the  ballot  should  be  an- 
nounced, but  that,  if  the  two  reports  disagreed,  the  ballot 
should  be  null  and  void.  7.  That,  as  soon  as  any  person  had 
a  majority  of  the  State  ballots,  the  speaker  should  announce 
his  election. ' ' 

Partly  to  balk  the  evident  desire  of  the  Democrats  for 
Jefferson,  and  partly  from  an  idea  that  Burr  would  be 
less  dangerous  to  the  commercial  interests  of  the  country, 
the  Federalist  caucus  had  determined  to  vote  for  Burr  for 
the  Presidency.  Had  all  the  Federalist  representatives 
obeyed  the  caucus,  Burr  would  have  been  elected  Presi- 
dent at  once;  but  the  single  Federalist  member  from 
Georgia,  one  Federalist  member  from  Maryland,  and  one 
from  North  Carolina,  whose  representatives  were  evenly 
divided,  decided  to  conform  to  the  wishes  of  their  con- 


The  Electoral  College  and  its  History    539 

stituents,  and  vote  for  Jefferson.  This  gave  him  the 
State  vote  of  Georgia  and  North  Carolina,  and  divided 
that  of  Maryland.  Jefferson  was  thus  sure  of  eight 
States,  all  those  south  of  New  England  except  Delaware, 
Maryland,  and  South  Carolina;  and  Burr  of  six  States, 
Delaware,  South  Carolina,  and  all  New  England  except 
Vermont,  which,  with  Maryland,  was  divided.  There 
was  thus  still  no  choice  by  the  House,  Jefferson  lacking 
one  of  a  majority  of  the  sixteen  States.  Bayard,  of 
Delaware,  Morris,  of  Vermont,  and  Craik  and  Baer,  of 
Maryland,  while  yielding  to  the  decision  of  the  Federal 
caucus  and  voting  for  Burr,  very  early  came  to  a  com- 
mon agreement  that,  as  any  one  of  them,  by  voting  for 
Jefferson,  could  at  any  time  give  him  a  majority  of  the 
States,  they  would  not  allow  the  balloting  to  be  pro- 
longed to  any  dangerous  extent. 

The  balloting  continued  for  a  week,  the  House  having 
nineteen  ballots  on  Wednesday,  February  nth;  nine  on 
Thursday,  February  I2th;  one  on  Friday,  February  I3th; 
four  on  Saturday,  February  I4th;  one  (the  thirty-fourth) 
on  Monday,  February  i6th;  but  all  with  the  same  result, 
eight  States  for  Jefferson,  six  for  Burr,  and  two  divided. 
This  protracted  uncertainty  was  enlivened  by  frequent 
caucusses  of  both  parties,  by  the  presence  of  sick  mem- 
bers who  had  been  carried  into  the  House  in  their  beds 
and  remained  there  to  insure  their  votes,  and  by  the 
angry  and  exaggerated  rumors  which  naturally  floated 
out  from  the  secret  sessions  to  the  people  outside. 

The  Federalists  were  charged  (and  justly  in  the  case  of 
some  of  them)  with  a  design  to  prolong  the  balloting 
until  the  expiration  of  Adams's  term,  March  3d,  and  then 
either  to  leave  the  Government  to  the  strongest  and  most 
active,  or,  by  special  act,  to  give  it  in  trust  to  the  Fed- 
eralist Chief  Justice,  John  Marshall,  who  was  then  also 
acting  as  Secretary  of  State.  In  any  such  event  the 
Democrats,  after  debating  a  proposition  to  call  an  extra 


54°  The  Slavery  Controversy 

session  of  the  next  Congress  in  March  by  a  proclamation 
signed  by  Jefferson  and  Burr,  in  one  of  whom  the  presi- 
dential title  was  vested,  seem  to  have  decided  to  have 
the  Middle  States  seize  the  capital  by  a  militia  force  and 
call  a  general  convention  of  the  States  to  provide  for  the 
emergency,  and  revise  the  Constitution.  For  all  this 
nervous  agitation  there  was  no  occasion  while  Bayard 
was  in  the  House,  and  exerted  his  influence,  as  he  always 
did,  for  good ;  but  it  was  very  fortunate  that  at  this  ses- 
sion Congress  had  changed  its  meeting-place  from  a  large 
city  to  the  little  village  of  Washington,  and  had  thus 
avoided  all  danger  of  interference  by  mobs. 

For  seven  days  the  House  remained  in  session,  nomin- 
ally without  adjournment,  though,  after  sitting  out  the 
first  night,  the  resolution  not  to  adjourn  was  evaded  by 
taking  recesses  as  convenience  demanded.  Monday, 
February  i6th,  the  four  associate  Federalists  decided 
that  the  party  experiment  had  gone  far  enough,  and 
that,  if  a  guarantee  for  the  civil  service  could  be  obtained 
from  Jefferson,  Burr  should  have  but  one  more  ballot. 
Tuesday,  February  i/th,  the  thirty-fifth  ballot  took 
place  with  the  usual  result,  and,  an  hour  afterward,  the 
thirty-sixth  ballot  began.  Jefferson  had  given  the  neces- 
sary guarantee  through  a  friend ;  Morris,  therefore,  by 
absenting  himself,  allowed  his  Democratic  colleague  to 
cast  the  State  vote  of  Vermont;  Craik  and  Baer,  by 
casting  blank  ballots,  made  Maryland  Democratic,  and 
Jefferson  received  ten  State  votes  out  of  sixteen  and  was 
elected.  Delaware  and  South  Carolina  voted  blank  bal- 
lots. The  Vice-Presidency  devolved  on  Burr,  for  whom 
the  New  England  States,  except  Vermont,  voted  to  the 
end.  Jefferson  entered  office  without  any  feelings  of 
gratitude  to  the  Federalists  who  had  given  him  the  posi- 
tion, but  with  great  irritation  against  them  for  having 
voted  blank  instead  of  voting  directly  for  him,  and  his 
account  is  to  be  taken  with  caution. 


The  Electoral  College  and  its  History    541 

II.  (1824). — The  dissolution  of  the  Federal  party  after 
1815  had  left  nominally  but  one  political  party,  the 
Democratic-Republican,  in  the  United  States.  But  the 
debates  in  Congress  alone  will  show  that  there  was  still 
the  abiding  difference  between  those  voters  in  the  North 
who  wished  to  construe  the  Constitution  broadly,  for 
the  benefit  of  commerce  and  a  strong  Federal  Govern- 
ment, and  those  in  the  South  and  West  who  wished  to 
construe  the  Constitution  strictly,  for  the  benefit  of  agri- 
culture and  the  conservation  of  the  State  governments, 
and  that  the  all-prevailing  Democratic-Republican  party 
was  really  divided  into  two  factions,  strict  constructionist 
and  broad  constructionist.  In  1820  and  1821  these  two 
branches  of  the  party  opposed  each  other,  though  not 
under  distinct  party  names,  in  animated  contests  for  the 
Speakership  of  the  House. 

The  want  of  regularly  organized  parties,  with  recog- 
nized principles,  only  resulted  in  the  degradation  of  the 
presidential  election  of  1824  into  a  personal  contest  be- 
tween John  Quincy  Adams,  Secretary  of  State,  Henry 
Clay,  Speaker  of  the  House,  William  H.  Crawford,  Sec- 
retary of  the  Treasury,  and  Andrew  Jackson,  who.  when 
nominated  by  his  State  legislature,  had  resigned  his 
position  as  Senator  and  become  a  private  citizen  of  Ten- 
nessee. Of  these  the  two  first  named  were  broad  con- 
structionists,  Federalists  in  reality,  though  they  would 
have  scouted  the  name,  and  the  two  last  named  were 
strict  constructionists.  In  the  presidential  election  Albert 
Gallatin,  who  had  been  nominated  by  the  congressional 
caucus  for  the  Vice- Presidency,  had  no  votes,  being  in- 
eligible, and  John  C.  Calhoun,  of  South  Carolina,  was 
generally  supported  by  the  friends  of  all  the  presidential 
candidates.  The  electors  failed  to  choose  a  President, 
and  the  duty  of  choosing  between  Jackson,  Adams,  and 
Crawford,  the  three  highest  candidates  on  the  list,  de- 
volved upon  the  House.  In  balloting,  the  rules  of  the 


542  The  Slavery  Controversy 

House  in  1801  were  adopted,  after  much  opposition  to 
the  exclusion  of  the  public.  Clay  standing  fourth  on  the 
list,  was  ineligible,  and  the  whole  struggle  in  the  House 
turned  on  the  success  of  the  other  candidates  in  winning 
the  Clay  vote.  This,  very  naturally,  went  to  Adams, 
though  only  as  a  choice  of  evils,  and  the  result  of  the  first 
ballot,  February  9,  1825,  was  thirteen  States  for  Adams, 
seven  States  for  Jackson,  and  four  States  for  Crawford. 
Adams  thus  became  President. 

Jackson  had  received  a  plurality  of  the  popular  and  the 
electoral  vote,  and  the  general  feeling  that  the  working  of 
the  Constitution  had  done  him  an  injustice  aided  greatly 
in  carrying  him  triumphantly  into  the  Presidency  four 
years  after.1 

A  more  patent  result  in  politics  was  the  charge,  first 
advanced  by  George  Kremer,  of  Pennsylvania,  in  the 
House,  and  by  his  own  confession  without  one  tittle  of 
evidence,  that  a  "corrupt  bargain"  had  been  made  be- 
tween Adams  and  Clay,  by  which  the  former  was  to 
receive  the  Clay  vote  in  the  House,  and  the  latter  the 
position  of  Secretary  of  State  in  Adams's  Cabinet. 
Adams's  subsequent  nomination  of  Clay  to  this  very  posi- 
tion was,  to  the  Democratic  mind,  incontrovertible  proof 
of  this  corrupt  union  of  New  England  and  Kentucky, 
"of  the  Puritan  and  the  black-leg."  This  charge  lay  like 
a  stumbling-block  in  Clay's  path,  eluding,  however,  his 
eager  search  for  an  authority  until  1827,  when  it  was 
formally  reiterated  by  Jackson  himself,  on  the  authority 
of  James  Buchanan,  Representative  from  Pennsylvania, 
who  at  once  declared  Jackson's  impression  "erroneous." 
And  yet  the  charge  was  renewed  quadrennially  for  twenty 
years  after  the  only  authority  ever  alleged  had  fully 
repudiated  any  responsibility  for  it. 

III.  (1836). — February  8,  1837,  the  electors  having 
failed  to  choose  a  Vice-President,"  the  Senate,  from  the 

1  But  see  Democratic  Party.  *  See  Democratic  Party,  IV. 


The  Electoral  College  and  its  History    543 

two  highest  candidates  on  the  list,  chose  Richard  M. 
Johnson  by  a  vote  of  33  to  16  votes  for  Francis  Granger. 

IV.  (1876). — The  origin  of  the  dispute  over  the  result 
of  the  presidential  election  of  1876  may  be  found  in  the 
constitutional  provision  that  each  State  shall  appoint 
electors  "in  such  manner  as  the  legislature  thereof  may 
direct."  Of  the  369  electors,  184,  one  less  than  a  major- 
ity, had,  without  question,  voted  for  the  Democratic 
candidates,  Tilden  and  Hendricks;  but  at  least  twenty 
of  the  remainder  were  disputed. 

In  the  three  Southern  States  of  Florida,  South  Caro- 
lina, and  Louisiana,  the  legislatures  had  directed  the 
counting  of  the  popular  vote  for  electors  to  be  done  by 
returning  boards,  with  plenary  power  to  cast  out  the 
entire  vote  of  any  county  or  parish  in  which  fraud  or 
force  had  vitiated  the  election.  By  exercising  this  power 
the  returning  boards  of  Florida  and  Louisiana  had  con- 
verted an  apparent  Democratic  popular  majority  into  an 
apparent  Republican  majority,  and  given  certificates  to 
the  Republican  electors.  It  was  known  before  February, 
1877,  tnat  double  returns  had  been  sent  by  the  Demo- 
cratic and  Republican  electors  of  the  three  States  named, 
and  from  Oregon.1  It  was  impossible  to  give  the  votes 
in  the  alternative,  for,  by  a  single  vote  from  any  of  the 
States  above  named,  Tilden  and  Hendricks  would  be 
seated.  By  the  twenty-second  joint  rule  the  Democratic 
House  could  have  thrown  out  all  the  doubtful  States  and 
given  the  Democratic  candidates  a  majority;  but  the 
Republican  Senate  had  repealed  the  joint  rule,  January 
20,  1876,  and  some  of  its  members  began  to  assert  the 
arbitrary  and  absolute  power  of  the  Vice-President  to 
"decide  which  were  legal  votes." 

Under  these  circumstances  the  Electoral  Commission 
was  created,  whose  decision  was  only  to  be  reversed  by 
concurrent  vote  of  both  Houses.  As  each  decision  of 

1  See  Electoral  Commission,  for  the  facts  in  this  case. 


544 

the  commission  in  favor  of  the  Republican  electors  was 
announced  to  the  two  Houses,  the  Senate  voted  to  sus- 
tain it,  and  the  House  to  reject  it,  by  strict  party  votes, 
and  the  commission's  decision  held  good.  In  each  of  the 
States  of  Michigan,  Nevada,  Pennsylvania,  Rhode  Island, 
and  Vermont,  one  elector  was  objected  to  as  holding  an 
office  of  trust  or  profit  under  the  United  States;  but 
both  Houses  concurred  in  admitting  all  these  votes. 

After  a  session  lasting  from  February  i,  1877,  until 
4.10  A.M.,  of  March  2d,  the  vote  was  finally  announced 
as  185  to  184  for  the  Republican  candidates,  Hayes  and 
Wheeler. 

THE  ELECTORAL  COMMISSION. — The  act  which  created 
this  body,  which  had  hitherto  been  unknown  to  the  laws 
of  the  United  States,  but  whose  idea  seems  to  have  been 
borrowed  from  the  extra-legislative  commissions  of  Great 
Britain,  was  approved  January  29,  1877.  ^  'ls  only 
necessary  here  to  give  the  first  three  paragraphs  of  sec- 
tion second,  the  rest  being  matter  of  detail.  Section  first 
provides  for  the  joint  meeting  of  the  two  Houses,  the 
opening  of  the  electoral  votes,  the  entrance  upon  the 
journals  of  the  votes  to  which  no  objection  should  be 
made,  and  the  separate  vote  by  each  House  on  single  re- 
turns from  any  State  to  which  objection  should  be  made, 
with  the  proviso  that  no  such  single  return  should  be  re- 
jected except  by  concurrent  vote  of  both  Houses. 

For  double  or  multiple  returns  the  Electoral  Com- 
mission was  provided,  as  follows: 

"  §  2.  That  if  more  than  one  return,  or  paper  purporting  to 
be  a  return,  from  a  State  shall  have  been  received  by  the 
President  of  the  Senate,  purporting  to  be  the  certificates  of 
electoral  votes  given  at  the  last  preceding  election  for  Presi- 
dent and  Vice- President  in  such  State  (unless  they  shall  be 
duplicates  of  the  same  return),  all  such  returns  and  papers 
shall  be  opened  by  him  in  the  presence  of  the  two  houses, 


The  Electoral  College  and  its  History    545 

when  met  as  aforesaid,  and  read  by  the  tellers,  and  all  such 
returns  and  papers  shall  thereupon  be  submitted  to  the  judg- 
ment and  decision,  as  to  which  is  the  true  and  lawful  electoral 
vote  of  such  State,  of  a  commission  constituted  as  follows, 
namely:  During  the  session  of  each  House  on  the  Tuesday 
next  preceding  the  first  Thursday  in  February,  1877,  each 
House  shall,  by  viva  voce  vote,  appoint  five  of  its  members, 
who  with  the  five  associate  justices  of  the  Supreme  Court  of  the 
United  States,  to  be  ascertained  as  hereinafter  provided,  shall 
constitute  a  commission  for  the  decision  of  all  questions  upon 
or  in  respect  of  such  double  returns  named  in  this  section." 


The  section  proceeds  to  specify,  though  without  directly 
naming  them,  four  justices,  those  assigned  to  the  ist, 
3d,  8th,  and  Qth  circuits,  and  directs  them  to  select  a 
fifth  justice  to  complete  the  commission,  which  should 
proceed  to  consider  the  returns  "with  the  same  powers, 
if  any,  now  possessed  for  that  purpose  by  the  two  Houses 
acting  separately  or  together."  It  is  concluded  else- 
where that  the  Houses  had  no  such  powers,  separately 
or  together,  and  could  delegate  no  such  powers  to  a  com- 
mission. The  question  of  the  legality  of  the  commission 
itself  will  therefore  not  be  revived  in  this  article.  The 
commission  was  to  decide  by  a  majority  of  votes,  and  its 
decisions  were  only  to  be  reversed  by  concurrent  action 
of  both  Houses. 

As  the  Senators  appointed  on  the  commission  were 
three  Republicans  to  two  Democrats,  the  Representatives 
three  Democrats  to  two  Republicans,  and  the  justices 
were  so  selected  as  to  be  two  Democrats  to  two  Republi- 
cans, it  is  evident  that  the  fifth  justice  was  to  be  the 
decisive  factor  of  the  commission.  The  radically  evil 
feature  of  the  act  was,  therefore,  that  it  shifted  upon  the 
shoulders  of  one  man  a  burden  which  the  two  Houses 
together  were  confessedly  incompetent  to  dispose  of. 

The  fifth  justice  selected  was  Joseph  P.  Bradley,  of  the 

VOL.  II. —  35- 


546  The  Slavery  Controversy 

fifth  circuit,  and  the  commission,  when  it  met  for  the  first 
time,  January  31,  1877,  was  constituted  as  follows  (Re- 
publicans in  Roman,  Democrats  in  italics):  Justices: 
Nathan  Clifford,  first  circuit ',  president ;  William  Strong, 
third  circuit;  Samuel  F.  Miller,  eighth  circuit;  Stephen 
J.  Field,  ninth  circuit ;  Joseph  P.  Bradley,  fifth  circuit. 
Senators:  George  F.  Edmunds,  Vt. ;  Oliver  P.  Morton, 
Ind. ;  Fred.  T.  Frelinghuysen,  N.  J. ;  Thos.  F.  Bayard, 
Del.;  Allen  G.  Thurman,  O.  Representatives:  Henry 
B.  Payne,  O. ;  Eppa  Hunter,  Va.  ;  Josiah  G.  Abbott, 
Mass. ;  Jas.  A.  Garfield,  O. ;  Geo.  F.  Hoar,  Mass. 
Francis  Kernan,  N.  Y.t  was  substituted,  February  26th, 
for  Senator  Thurman,  who  had  become  ill.  The  Bar, 
besides  the  ablest  lawyers  of  both  parties  in  both  Houses, 
who  appeared  as  objectors  to  various  returns,  was  com- 
posed of  O'Conor,  of  New  York;  Black,  of  Pennsylvania; 
Trumbull,  of  Illinois;  Merrick,  of  the  District  of  Colum- 
bia; Green,  of  New  Jersey;  Carpenter,  of  Wisconsin; 
Hoadley,  of  Ohio;  and  Whitney,  of  New  York,  on  the 
Democratic  side;  and  Evarts  and  Stoughton,  of  New 
York,  and  Matthews  and  Shellabarger,  of  Ohio,  on  the 
Republican  side.  As  the  double  returns  from  the  four 
disputed  States  came  to  the  commission,  they  were  nec- 
essarily decided  in  alphabetical  order:  Florida,  Louisiana, 
Oregon,  and  South  Carolina ;  but  the  principle  settled  in 
the  case  of  Florida  practically  decided  all  the  cases,  and 
longer  space  will  be  given  to  it. 

I.  Florida.* — Three  returns  from  Florida  were  sent  to 
the  commission,  February  2d,  by  the  joint  meeting  of  the 
two  Houses :  I,  the  return  of  the  votes  of  the  Hayes  elec- 
tors, with  the  certificate  of  the  Governor,  Stearns,  an- 
nexed, under  the  decision  of  the  State  returning  board, 
which  had  cast  out  the  vote  of  certain  polling  places ;  2, 

1  For  the  laws  of  the  United  States  governing  the  voting  of  electoral  col- 
leges, and  the  certification  of  the  result  by  the  State  governor,  see  Electors 
IV. 


The  Electoral  College  and  its  History    547 

the  return  of  the  Tilden  electors,  with  the  certificate  of 
the  State  Attorney-General,  who  was  one  of  the  return- 
ing board,  annexed,  given  according  to  the  popular  vote 
as  cast  and  filed  in  the  office  of  the  Secretary  of  State ; 
3,  the  same  return  as  the  second,  fortified  by  the  certifi- 
cate of  the  new  Democratic  Governor,  Drew,  according  to 
a  State  law  of  January  17,  1877,  directing  a  recanvass  of 
the  votes. 

The  line  of  attack  of  the  Democratic  counsel  upon  the 
validity  of  the  first  (Republican)  return  was  twofold, 
i.  They  offered  to  prove  that  the  State  Returning 
Board,  on  its  own  confession,  had  cast  out  the  votes  of 
rejected  precincts  without  any  pretence  of  proof  of  fraud 
or  intimidation;  that  it  had  thus  been  itself  guilty  of 
conspiracy  and  fraud,  which  fraud  and  conspiracy  they 
had  a  right  to  prove  on  the  broad  principle  that  fraud 
can  always  be  inquired  into  by  any  court,  with  the  ex- 
ception of  two  specified  cases,  neither  of  which  applied 
here,  and  that  the  Supreme  Court  of  Florida  had  decided 
the  action  of  the  Returning  Board  to  be  ultra  vires,  illegal, 
and  void.  2.  They  offered  to  prove  that  Humphreys, 
one  of  the  Hayes  electors,  was  a  United  States  officer 
when  elected,  and  therefore  ineligible. 

The  Republican  counsel  argued  that  the  first  return 
was  in  due  form  according  to  the  Constitution  and  laws 
of  the  United  States  and  the  laws  of  Florida ;  that  the 
second  return,  having  been  certified  only  by  the  electors 
and  by  an  officer  unknown  to  the  laws  as  a  certifying 
officer,  was  a  certificate  of  unauthorized  and  uncertified 
persons,  which  could  not  be  recognized  or  considered; 
and  that  the  third  return  was  entirely  ex  post  facto,  having 
been  made  and  certified  after  the  date  on  which  the  laws 
directed  the  votes  of  the  electors  to  be  cast,  and  when  the 
Electoral  College  was  functus  official  Holding  that,  if 
the  first  return  was  valid,  it  excluded  the  other  two,  they 

1  See  Electoral  College. 


548  The  Slavery  Controversy 

confined  their  argument  to  the  capacity  of  the  commission 
to  invalidate  it. 

This  was  denied  on  the  ground  that  the  question  was 
not  which  set  of  Florida  electors  received  a  majority  of 
the  votes  cast,  for  that  was  a  matter  which  the  State 
itself  controlled,  and  its  action  could  not  be  examined  or 
reversed  by  any  other  State,  or  by  all  the  other  States 
together;  but  that  the  question  was,  which  set  of  elec- 
tors, by  the  actual  declaration  of  the  final  authority  of 
the  State  charged  with  that  duty,  had  become  clothed 
by  the  forms  of  law  with  actual  possession  of  the  office ; 
in  short,  that  the  commission's  only  duty  was  to  count 
the  electoral  vote,  not  the  vote  by  which  the  electors  had 
been  chosen.  To  the  general  offer  of  evidence  they  re- 
plied that  the  consideration  of  such  evidence  was,  i, 
physically  impossible,  since  the  commission  "could  not 
stop  at  the  first  stage  of  the  descent,  but  must  go  clean 
to  the  bottom,"  and  investigate  every  charge  of  fraud 
and  intimidation  in  all  the  disputed  States,  which  would 
be  a  labor  of  years;  2,  legally  impossible,  since  the  law 
(of  1792)  itself  prescribed  the  evidence  (the  governor's 
certificate)  which  was  competent,  and,  when  the  commis- 
sion had  ascertained  its  correctness,  its  work  was  con- 
cluded ;  and  3,  constitutionally  impossible,  since  the 
commission  was  not  a  court  and  could  not  exercise  judi- 
cial powers,  which  by  the  Constitution  were  vested  in  the 
Supreme  Court  and  in  inferior  courts  to  be  established ; 
that  the  commission  was  not  one  of  these  inferior  courts, 
since  an  appeal  lay  to  Congress,  not  to  the  Supreme 
Court ;  and  that  its  functions  were  ministerial,  and  con- 
fined to  ascertaining  the  regularity  of  the  certificates 
sent.  To  the  special  offer  in  Humphreys's  case  they 
asserted,  as  the  general  rule  of  American  law,  that  votes 
for  disqualified  persons  were  not  void  unless  the  disquali- 
fication were  public  and  notorious,  that  voters  would 
never  be  presumed  guilty  of  an  intention  to  disfranchise 


kThe  Electoral  College  and  its  History    549 

themselves,  and  that  the  de  facto  acts  of  even  a  disquali- 
fied elector  were  valid. 

February  7th,  the  commission  voted,  I,  to  reject  the 
general  offer  of  evidence  aliunde  the  certificates,  and  2, 
to  receive  evidence  in  the  case  of  Humphreys.  Both 
votes  were  8  to  7,  Justice  Bradley,  the  "odd  man,"  vot- 
ing on  the  first  issue  with  the  Republicans,  and  on  the 
second  with  the  Democrats.  Evidence  was  then  sub- 
mitted to  prove  that  Humphreys  was  a  shipping  com- 
missioner, and  that  he  resigned  in  October,  1876,  by 
letter  to  the  judge  who  had  appointed  him,  but  who  was 
then  absent  from  Florida  on  a  visit  to  Ohio.  The  Demo- 
cratic counsel  argued  that  this  was  no  resignation,  since 
the  judge,  while  absent  in  Ohio,  was  not  a  court  capable 
of  receiving  a  resignation  in  Florida.  To  this  it  was  re- 
plied that  the  resignation  depended  on  the  will  of  the 
incumbent,  and  took  effect  from  its  offer  without  regard 
to  its  acceptance.  February  9th,  by  the  usual  vote  of  8 
to  7,  the  commission  sustained  the  validity  of  the  Hayes 
electoral  ticket  entire,  on  the  grounds,  I,  that  the  com- 
mission was  not  competent  to  consider  evidence  aliunde 
the  certificates,  and  2,  that  Humphreys  had  properly 
resigned  his  office  when  elected. 

II.  Louisiana. — February  I2th,  three  certificates  from 
Louisiana  were  submitted  to  the  commission.  The  first 
and  third  returns  were  identical,  and  were  those  of  the 
Hayes  electors,  with  the  certificate  of  Gov.  W.  P.  Kel- 
logg, claiming  under  the  count  of  the  vote  as  finally 
made  by  the  Returning  Board.  The  second  return  was 
that  of  the  Tilden  electors,  with  the  certificate  of  John 
McEnery,  who  claimed  to  be  Governor;  they  claimed 
under  the  popular  vote  as  cast.  The  Democratic  counsel 
offered  to  prove  that  the  average  popular  majority  for  the 
Tilden  electors  was  7639 ;  that  the  Returning  Board  had 
fraudulently,  corruptly,  and  without  evidence  of  intimi- 
dation, cast  out  13,236  Democratic  and  2173  Republican 


550  The  Slavery  Controversy 

votes,  in  order  to  make  an  apparent  majority  for  the 
Hayes  electors;  that  two  of  the  Hayes  electors  held 
United  States  offices,  and  three  others  State  offices, 
which  disqualified  them  under  State  laws;  that  the  Re- 
turning Board  had  violated  the  State  law  by  refusing  to 
select  one  of  its  members  from  the  Democratic  party, 
and  by  holding  its  sessions  in  secret  and  not  allowing 
the  presence  of  any  Democrat,  or  even  of  United  States 
supervisors;  that  McEnery,  and  not  Kellogg,  was  legally 
Governor;  and  they  argued  that  the  State  law  creating 
the  Returning  Board  was  void,  as  it  conflicted  with  the 
Constitution  by  erecting  a  government  which  was  anti- 
republican  and  oligarchical,  since  the  Returning  Board 
was  perpetual  and  filled  its  own  vacancies.  The  argu- 
ments of  the  Republican  counsel  were  practically  the 
same  as  on  the  Florida  case,  and  the  commission,  by  8 
to  7,  upheld  their  view,  February  i6th.  Nine  successive 
motions  by  Democratic  commissioners  to  admit  various 
parts  of  the  evidence  had  been  first  rejected,  each  by  a 
vote  of  8  to  7. 

III.  Oregon. — The  facts  in  the  case  of  this  State  were 
as  follows :  The  three  Hayes  electors  undoubtedly  had  a 
popular  majority ;  one  of  them  (Watts)  was,  when  elected, 
a  postmaster,  and  the  Democratic  Governor  (Grover),  de- 
claring Watts  ineligible,  gave  his  certificate  of  election  to 
the  two  eligible  Hayes  electors,  and  to  Cronin,  the  high- 
est Tilden  elector.  The  two  Hayes  electors  refused  to 
recognize  Cronin,  accepted  Watts's  resignation,  and  at 
once  appointed  Watts  to  fill  the  resulting  vacancy. 
Cronin  therefore  appointed  two  electors  to  fill  the  vacan- 
cies caused  by  the  refusals  to  serve  with  him ;  these  cast 
Hayes  ballots,  and  Cronin  a  Tilden  ballot.  The  result 
was  two  certificates  from  Oregon,  submitted  to  the  com- 
mission February  2ist.  The  first  return  was  that  of  the 
Hayes  electors,  with  the  tabulated  vote  of  the  State,  and 
a  certificate  from  the  Secretary  of  State.  The  second  re- 


The  Electoral  College  and  its  History    551 

turn  was  that  of  the  Cronin  electoral  college,  with  the 
certificate  of  the  Governor,  and  the  attest  of  the  Secre- 
tary of  State.  The  Democratic  counsel  held  that  the 
second  return,  with  the  Governor's  certificate,  was  legally 
the  voice  of  Oregon,  as  the  commission  had  decided  in 
the  case  of  Louisiana,  and  more  exactly  in  the  case  of 
Florida;  that  it  was  strengthened  by  the  attest  of  the 
Secretary  of  State,  who  was  the  canvassing  officer  by  the 
laws  of  Oregon ;  and  that  it  necessarily  excluded  the  first 
return.  The  reply  of  the  Republican  counsel  showed 
that,  while  they  had  avoided  the  Scylla  of  Florida,  they 
had  been  equally  successful  in  steering  clear  of  the 
Charybdis  of  Oregon.  They  held  that  the  Florida  case 
did  not  apply ;  that  there  the  basis  of  the  decision  was, 
that  the  commission  could  only  inquire  whether  the  Gov- 
ernor had  correctly  certified  the  action  of  the  canvassing 
board  appointed  by  the  State ;  that  in  Florida  and  Louis- 
iana the  Governor  had  so  correctly  certified,  while  in 
Oregon  he  had  not  so  certified,  but  should  have  done  so ; 
and  that  the  commission  was  competent  to  make  his 
action  conform  to  the  laws  of  his  State.  February  23d, 
the  commission,  by  votes  of  8  to  7  in  each  instance,  re- 
jected five  successive,  but  various,  resolutions  to  reject 
the  vote  of  Watts;  by  a  vote  of  15  to  o,  rejected  the 
second  return  entirely;  and,  by  a  vote  of  8  to  7,  accepted 
the  first  return. 

IV.  South  Carolina. — February  26th,  two  certificates 
from  South  Carolina  were  laid  before  the  commission. 
The  first  return  was  that  of  the  Hayes  electors,  with  the 
certificate  of  Governor  Chamberlain.  The  second  return 
was  a  certificate  of  the  Tilden  electors,  claiming  simply 
to  have  been  chosen  by  the  popular  vote,  to  have  been 
counted  out  by  the  Returning  Board  in  contempt  of  the 
orders  of  the  State  Supreme  Court,  and  to  have  met  and 
voted  for  Tilden  and  Hendricks.  The  Democratic  coun- 
sel held  that  government  by  a  returning  board  was  not 


55 2  The  Slavery  Controversy 

republican,  and  that  under  President  Grant's  proclama- 
tion of  October  17,  1876,  declaring  part  of  the  State  to 
be  in  insurrection,  military  interference  had  made  the 
election  a  nullity.  No  serious  effort  was  made  to  estab- 
lish the  validity  of  the  second  return.  February  27th, 
the  commission,  by  a  vote  of  8  to  7,  rejected  the  offer  to 
prove  military  interference;  by  a  vote  of  15  to  o,  rejected 
return  No.  2 ;  and,  by  a  vote  of  8  to  7,  accepted  return 
No.  i.  March  2,  1877,  the  commission  adjourned  sine 
die.1 

It  would  seem  no  more  difficult  to  impeach  the  consti- 
tutionality of  the  commission  than  that  of  the  "twenty- 
second  joint  rule,"  under  which  so  many  former  counts 
were  made  * ;  and  in  that  case  the  legal  title  given  to  the 
new  President,  through  the  mediation  of  the  commission, 
would  seem  to  be  on  an  exact  equality  with  that  of  Lin- 
coln, Johnson,  or  Grant. 

The  cruelly  vicious  feature  in  the  scheme  was  the  fact 
that  fourteen  members  of  the  commission  were  practically 
irresponsible,  while  the  fifteenth  was  secure  in  advance  of 
a  monopoly  of  the  anger  of  one  party  or  of  the  other. 
In  the  case  of  Mr.  Justice  Bradley  the  censure  was  totally 
undeserved.  If  the  constitutionality  of  the  commission 
be  granted,  as  it  was  by  both  parties,  the  weight  of 
law,  in  spite  of  the  brilliant  arguments  of  Messrs.  Merrick, 
Carpenter,  Green,  and  others  of  the  Democratic  counsel, 
lay  in  the  Republican  scale;  and  even  in  Louisiana,  where 
the  proceedings  of  the  Returning  Board  were  shame- 
fully, or  rather  shamelessly,  defenceless,  the  censure 
should  fall  not  on  the  commission,  but  on  the  laws  of 
Louisiana. 

The  Proceedings  of  the  Electoral  Commission,  being  Part 
IV.,  vol.  v.,  of  the  Congressional  Record,  1877,  have  been 

1  For  the  successive  actions  taken  by  the  joint  meeting  on  the  commis- 
sion's decisions,  see  Disputed  Elections,  III. 
*  See  Electors. 


The  Electoral  College  and  its  History    553 

published  in  a  single  volume.  It  contains  the  arguments 
of  counsel  in  full,  the  opinions  of  the  commissioners,  the 
journal  of  the  commission,  and  all  the  certificates  and 
objections. 

On  Electoral  College  and  Electoral  Count  see  (I.) 
i  Elliot's  Debates,  182,  208,  211,  222,  228,  283,  290, 
302;  5  Elliot's  Debates,  128,  131,  141,  192,  322,  334, 
363,  507,  520,  586.  (II.)  McKnight's  Electoral  System; 
The  Federalist,  Ixviii. ;  Story's  Commentaries,  §  1449;  2 
Bancroft's  History  of  the  Constitution,  169;  Rawle's  Com- 
mentaries, 58;  2  Wilson's  Law  Lectures,  187;  I  Kent's 
Commentaries,  262;  Phocion  s  Letters  (in  1824,  copied  in 
24  Niles's  Register,  373,  411);  5  Elliot's  Debates,  541 ;  the 
arguments  and  precedents  in  favor  of  the  power  of  Con- 
gress to  canvass  the  votes  will  be  found  in  Appleton's 
Presidential  Counts,  pp.  xliv.-liv.  (III.)  See  Annals  of 
Congress  for  the  year  required ;  these  are  collected  in  a 
more  easily  accessible  form  in  Appleton's  Presidential 
Counts,  and  the  volume  entitled  Counting  the  Electoral 
Votes  (H.  of  R.  Misc.  Doc.,  1877,  No.  13).  (IV.)  I  Stat. 
at  Large,  239  (act  of  March  I,  1792);  5  Stat.  at  Large, 
721  (act  of  Jan.  23,  1845);  U.  S.  Rev.  Stat.  §§  131-142. 
(V.)  2  Stat.  at  Large,  295  (act  of  March  26,  1804);  Count- 
ing the  Electoral  Votes,  224,  786  (the  twenty-second  joint 
rule);  13  Stat.  at  Large,  490  (act  of  Feb.  8,  1865);  19 
Stat.  at  Large,  227  (Electoral  Commission  Act).  (VI.) 
Counting  the  Electoral  Votes,  16  (Bill  of  1800);  Annals 
of  Congress  (6th  Cong.),  126  (Pinckney's  speech) ;  Apple- 
ton's  Presidential  Counts,  419  (ibid.} ;  7  Benton's  Debates 
of  Congress,  472,  473,  480  (the  Benton,  Dickerson,  and 
Van  Buren  amendments  respectively) ;  Counting  the  Elec- 
toral Votes,  711  (the  McDuffie  amendment);  7  Benton's 
Debates,  603  (purports  to  give  the  amendment,  but  omits 
the  amendment  proper,  as  to  the  election  of  President, 
and  gives  only  the  provisions  relating  to  the  election  of 


554  The  Slavery  Controvery 

Vice-President) ;  12  Benton's  Debates  of  Congress,  659 
the  Gilmer  amendment);  Counting  the  Electoral  Votes, 
422  (the  Morton  amendment);  Congressional  Record,  Feb. 
25>  !875  (the  Morton  bill);  North  American  Review, 
January,  1877  (the  Buckalew  amendment):  McMillan's 
Elective  Franchise;  Congressional  Record,  Dec.  19,  1881 
(the  Edmunds-Hoar  bill).  (VII.)  Counting  the  Electoral 
Votes,  and  Appleton's  Presidential  Counts ;  for  Jefferson 
and  the  Georgia  votes  in  1801,  see,  on  the  one  side,  2 
Davis's  Life  of  Burr,  71 ;  and  on  the  other,  i  Democratic 
Review,  236. 

On  Disputed  Elections  see  (I.)  Hildreth's  United 
States,  402;  i  von  Hoist's  United  States,  168;  2  Gibbs's 
Administrations  of  Washington  and  Adams,  488;  7  J.  C. 
Hamilton's  United  States,  425 ;  9  John  Adams's  Works, 
98;  6  Hamilton's  Works,  480-523  (and  Bayard's  letters 
there  given),  2  Randall's  Life  of  Jefferson,  573;  2 
Tucker's  Life  of  Jefferson,  75,  510;  3  Jefferson's  Works 
(ed.  1829)  444,  and  4:515  (Ana);  i  Garland's  Life  of 
Randolph,  187;  Parton's  Life  of  Burr,  262;  3  Sparks's 
Life  and  Writings  of  Morris,  132;  2  Benton's  Debates  of 
Congress.  (II.)  2  von  Hoist's  United  States,  4;  3  Par- 
ton's  Life  of  Jackson,  54;  i  Colton's  Life  of  Clay,  290; 
Private  Correspondence  of  Clay,  109;  i  Benton's  Thirty 
Years'  View,  47;  Sargent's  Public  Men  and  Events,  70; 
2  Hammond's  Political  History  of  New  York,  177;  8 
Benton's  Debates  of  Congress.  (III.)  13  Benton's  Debates 
of  Congress,  738.  (IV.)  23,  24  Nation;  Appleton's  An- 
nual Cyclopcedia,  1876-7;  Tribune  Almanac,  1877;  Con- 
gressional Record,  1877;  and  authorities  under  Electoral 
Commission. 


CHAPTER   XVII 

PARTIES   AFTER    l86l 

THE  DEMOCRATIC  PARTY. —  The  situation  of  the 
Democratic  party,  when  the  extra  session  of  Congress 
met  in  i86i/  was  peculiarly  unfortunate.  Founded  on 
a  strict  construction  of  the  Constitution,  and  yet  called 
upon  to  face  a  war  in  which,  as  it  was  not  foreign  but 
civil,  the  Constitution  and  laws  were  certain  to  be  strained 
to  their  utmost  tension,2  it  could  only  be  at  fault  in  what- 
ever direction  it  turned.  In  the  midst  of  an  enormous 
revolution  of  thought  and  feeling,  it  alone  endeavored  to 
stem  the  current  and  to  apply  to  1861  the  precedents  of 
1850.  In  the  measures  which  the  dominant  party  held 
patriotic  and  necessary,  the  issues  ef  paper  money,  the 
laws  for  the  confiscation  of  rebel  property  and  slaves  and 
for  drafts,  the  suspension  of  the  writ  of  habeas  corpus, 
and  the  arbitrary  arrests  of  suspected  persons,  it  saw  only 
partisan  attempts  to  make  party  capital,  or  direct  viola- 
tions of  law  for  the  purpose  of  increasing  party  votes  or 
of  gratifying  the  spite  of  party  leaders. 

The  mass  of  the  party  was  therefore  arrayed,  through- 
out the  Rebellion,  against  the  methods  by  which  the 
war  was  conducted ;  but  there  was  a  strong  underlying 
sentiment  in  the  party  that  the  war  itself  was  unneces- 
sary, and  that  the  troubles  of  the  country  could  be  most 
easily  settled  by  a  convention  of  the  States.  An  active 
minority,  chiefly  in  the  border  States  and  a  few  of  the 
1  See  Rebellion.  *  See  Construction,  III.  ;  War  Power. 

555 


556  The  Slavery  Controversy 

Western  States,  was  avowedly  anxious  for  the  success  of 
the  South ;  and  their  busy  persistence,  the  general  with- 
drawal of  the  war  Democrats  from  the  party,  and  the 
repugnance  of  the  great  mass  of  Democrats  to  the  more 
violent  war  measures,  enabled  the  dominant  party  to  give 
the  name  of  "copperheads"  to  the  whole  Democratic 
party. 

In  the  first  Congress  of  the  war  the  Democrats  had  in 
the  Senate  but  10  out  of  50  members,  and  in  the  House 
but  42  out  of  178;  in  the  next  Congress  (1863-5)  they 
had  9  out  of  50  Senators,  and  75  out  of  186  Representa- 
tives. But  in  both  Congresses  there  were  enough  border- 
State  members  (7  Senators  and  28  Representatives  in  the 
first  Congress,  and  5  Senators  and  9  Representatives  in 
the  second),  who  generally  acted  with  the  Democrats,  to 
make  them  a  very  effective  opposition. 

The  political  folly  of  secession  may  be  partially  esti- 
mated by  considering  the  fact  that  only  the  voluntary 
absence  of  the  22  Senators  and  66  Representatives  of  the 
seceding  States  gave  the  Republicans  a  majority  in  either 
House  at  any  time  until  the  real  close  of  the  Rebellion. 
In  State  elections  the  Democrats  were  very  steadily  de- 
feated ;  throughout  the  last  two  years  of  the  war  but  two 
Northern  States,  New  Jersey  and  New  York,  had  Demo- 
cratic governors.  But  the  majorities  in  these  elections, 
with  such  exceptions  as  that  of  Ohio  in  1863,  were  usually 
not  large ;  and  it  would  be  fair  to  say  that  the  two  par- 
ties maintained  about  their  proportional  vote  from  1860 
until  1864,  the  continued  Democratic  loss  of  voters  who 
fell  off  to  the  Republican  party,  through  a  desire  for  a 
vigorous  prosecution  of  the  war,  being  balanced  by  Demo- 
cratic accessions  of  Republicans  who  were  estranged  by 
the  gradual  adoption  of  anti-slavery  measures  and  at- 
tracted by  the  Democratic  opposition  to  them.1 

The  national  convention  had  been  called  to  meet  July 

1  See  Abolition,  III.  ;  Slavery. 


Parties  after  1861  557 

4,  1864,  at  Chicago,  but  in  June  its  meeting  was  post- 
poned to  August  29th.  The  selection  of  a  Western  city 
as  the  meeting-place,  just  at  this  time,  was  undoubtedly 
a  great  mistake,  for  the  Western  Democrats  had  been 
intensely  excited  in  May,  1863,  by  the  arrest  and  mili- 
tary conviction  of  C.  L.  Vallandigham,  one  of  their  lead- 
ers in  Ohio,  for  attacking  the  management  of  the  war  in 
his  public  speeches.  The  influences  which  surrounded 
the  convention  from  its  first  gathering  by  no  means 
tended  to  calm  deliberation,  and  their  result  was  seen  in 
the  platform  adopted,  whose  wording  was  almost  equally 
brilliant,  bitter,  and  fatal. 

For  the  first  time  in  twenty-four  years  the  platform  of 
1840,  the  basis  of  the  party's  legitimate  existence,  was 
dropped;  and  the  platform  of  1864  makes  no  mention  of 
any  economic  principle  on  which  the  party  proposed  to 
manage  the  Government,  if  successful.  It  consisted  of 
six  resolutions,  all  but  one  of  which,  the  last,  attacked 
the  management  of  the  war.  The  single  exception  ex- 
pressed the  sympathy  of  the  party  for  the  volunteers  in 
the  field.  The  others,  i,  stated  the  party's  adherence  to 
the  Union  under  the  Constitution ;  2,  demanded  a  cessa- 
tion of  hostilities,  and  denounced  the  Administration  for, 
3,  interfering  with  military  force  in  elections,  4,  suspend- 
ing the  writ  of  habeas  corpus  in  States  not  in  insurrection, 
and  5,  refusing  to  exchange  prisoners. 

The  most  important,  the  second,  is  as  follows,  in  full  : 

"  That  this  convention  does  explicitly  declare,  as  the  sense 
of  the  American  people,  that,  after  four  years  of  failure  to  re- 
store the  Union  by  the  experiment  of  war,  during  which,  under 
the  pretence  of  a  military  necessity  of  a  war  power  higher  than 
the  Constitution,  the  Constitution  itself  has  been  disregarded 
in  every  part,  and  public  liberty  and  private  right  alike  trodden 
down,  and  the  material  prosperity  of  the  country  essentially 
impaired,  justice,  humanity,  liberty,  and  the  public  welfare 
demand  that  immediate  efforts  be  made  for  a  cessation  of 


558  The  Slavery  Controversy 

hostilities,  with  a  view  to  an  ultimate  convention  of  all  the 
States,  or  other  peaceable  means,  to  the  end  that,  at  the  earliest 
practicable  moment,  peace  may  be  restored  on  the  basis  of 
the  Federal  Union  of  the  States." 

The  platform,  therefore,  made  every  issue  on  which 
the  party  had  ever  succeeded,  or  could  ever  hope  to  suc- 
ceed, subordinate  to  an  issue  on  which  it  had  very  faint 
hopes  of  success — a  mistake  which  has  been  frequently 
repeated  since.  On  the  second  ballot  Geo.  B.  McClellan 
was  nominated  for  President  by  202^  votes  to  23^  for 
Thos.  H.  Seymour,  of  Connecticut ;  and  for  Vice-Presi- 
dent Geo.  H.  Pendleton  was  unanimously  nominated  on 
the  first  ballot. 

In  1863  the  Ohio  Democracy  had  anticipated  the  error 
of  the  national  convention  of  1864,  had  nominated  Val- 
landigham  for  governor  on  the  single  issue  of  his  arrest, 
and  been  beaten  by  the  enormous  majority  of  101,099 
out  of  476,223  votes.  The  result  in  1864  confirmed  that 
of  1863 ;  the  Democratic  candidates  received  the  electoral 
votes  of  only  three  States,  New  Jersey,  Delaware,  and 
Kentucky.  The  popular  vote,  however,  had  grown  since 
1860  parallel  with  that  of  the  opposing  party;  in  spite  of 
the  defection  of  war  Democrats,  the  secession  of  half  a 
million  of  its  former  voters,  and  a  platform  which  did 
not  gain  a  single  vote,  the  party  still  polled  forty-five  per 
cent,  of  the  total  popular  vote. 

From  July,  1865,  until  July,  1866,  the  Democratic 
party  passed  through  the  darkest  part  of  its  valley  of 
humiliation.  It  was  beaten  by  increased  majorities  in 
every  Northern  State  election  excepting  a  majority  of  a 
few  hundred  votes  in  Kentucky  against  an  anti-slavery 
State  constitution;  and  outside  of  the  late  seceding 
States  but  one  State,  Delaware,  had  a  Democratic  gov- 
ernor. In  the  Congress  which  met  in  December,  1865, 
the  Democrats  had  but  10  out  of  52  Senators,  and  40  out 


Parties  after  1861  559 

of  185  Representatives.  All  the  excluded  votes  from  the 
insurrectionary  States  could  not  now  have  given  them 
more  than  a  respectable  minority  in  Congress. 

The  open  breach  between  President  Johnson  and  the 
Republican  majority,  about  March,  1866,'  was  closely 
similar  to  that  between  President  Tyler  and  the  Whig 
party,  twenty-five  years  before,  and  seemed  at  first  to 
promise  similar  advantages  to  the  Democrats.  But  the 
questions  at  issue  were  so  complicated  with  the  passions 
of  recent  armed  conflict,  and  the  Democratic  party  had 
so  long  been  dealing  with  questions  not  fundamental  to 
it,  that  it  was  now  unable  to  follow  the  course  of  neutral- 
ity, coupled  with  a  constant  pursuit  of  its  own  economic 
objects,  which  its  leaders  had  so  skilfully  and  successfully 
taken  in  1841-2.  The  party's  strict-construction  prin- 
ciples certainly  compelled  it  to  oppose  reconstruction  by 
Congress,  but  every  consideration  of  policy  should  have 
counselled  it  to  prevent  this,  if  possible,  from  becoming 
the  controlling  question  of  politics.  On  the  contrary,  it 
fought  against  the  passage  of  the  preliminary  and  com- 
paratively inoffensive  Civil  Rights  Bill  and  Freedman's 
Bureau  Bill  with  an  acrimony  which  only  resulted  in  their 
final  passage  without  change,  in  the  complete  mainten- 
ance of  the  enormous  Republican  majority  in  the  con- 
gressional elections  of  1866,  and  in  the  passage  of  the  act 
of  March  2,  1867,  which  fairly  began  the  process  of  re- 
construction by  Congress,  with  the  certainty  of  a  Repub- 
lican majority  of  over  three  fourths  in  Congress,  to 
complete  it  during  the  next  two  years. 

The  party  thus  renewed  the  mistake  of  1864,  and 
elected  to  fight  upon  ground  of  its  adversary's  choosing. 
During  the  remainder  of  President  Johnson's  term  of 
office,"  it  struggled  vainly  but  pertinaciously  against  the 
completion  of  reconstruction  by  Congress.  The  national 

1  See  Reconstruction,  Republican  Party. 
8  See  also  Impeachments,  VI. 


560  The  Slavery  Controversy 

convention  met  July  4,  1868,  at  New  York  City,  and 
adopted  a  platform  in  eight  resolutions,  followed  by  a 
long  arraignment  of  the  Republican  party  for  various 
violations  of  the  organic  law. 

Most  of  the  eight  resolutions  were  devoted  to  the 
question  of  reconstruction.  One  of  them,  however, 
showed  some  signs  of  a  return  to  the  original  political 
principles  of  the  party;  it  demanded  "a  tariff  for  revenue 
upon  foreign  imports,"  though  it  was  coupled  with  an 
ambiguous  wish  for  "incidental  protection  to  domestic 
manufactures"  in  arranging  internal  taxes.  But  it  de- 
parted from  Democratic  precedents  in  two  points:  i. 
Since  the  freedmen  were  now  legally  persons  and  not 
property,  the  Democratic  principle  of  universal  suffrage, 
for  which  the  party  had  for  eighty  years  contended,  ap- 
parently attached  at  once  to  them  also ;  the  convention, 
however,  declared  in  the  strongest  terms  against  negro 
suffrage.  2.  The  party  had  regularly  resisted  the  estab- 
lishment of  any  other  currency  than  gold  and  silver  by 
the  Federal  Government,  not  only  as  unconstitutional, 
but  as  eventually  bearing  most  hardly  upon  the  masses  of 
the  people,  and  within  five  years  it  had  strenuously  op- 
posed the  adoption  of  the  legal-tender  paper  currency ; 
the  convention,  however,  seduced  by  the  idea  of  forcing 
upon  the  bondholder  the  same  currency  which  the  people 
had  been  compelled  to  accept,  declared  in  favor  of  the 
payment  of  the  debt  in  legal-tender  paper,  except  those 
portions  of  it  which  were  in  terms  payable  in  coin. 

The  political  course  of  Chief  Justice  S.  P.  Chase,  par- 
ticularly during  the  impeachment  of  President  Johnson, 
had  gained  many  friends  for  him  in  the  Democratic 
party,  and  the  convention  would  probably  have  nomi- 
nated him  but  for  the  determined  opposition  of  the  dele- 
gates from  his  own  State,  Ohio,  who  were  anxious  to 
nominate  Pendleton.  On  the  first  ballot  the  vote  stood : 
Pendleton,  105;  Andrew  Johnson,  65;  Hancock,  33^; 


Parties  after  1861  561 

Sanford  E.  Church,  of  New  York,  33  ;  and  79^  scattering. 
Johnson's  vote  immediately  and  rapidly  decreased.  Pen- 
dleton's  vote  rose  to  156^  on  the  eighth  ballot,  and  then 
fell  until  his  name  was  withdrawn  on  the  eighteenth  bal- 
lot. The  votes  for  other  candidates  underwent  little 
change,  except  those  for  Hancock  and  T.  A.  Hendricks, 
which  rose  to  135^  for  Hancock  and  132  for  Hendricks 
on  the  twenty-first  ballot.  On  the  next  ballot  the  Ohio 
delegation  insisted  on  nominating  Horatio  Seymour,  and 
the  unanimous  vote  of  the  delegates  was  at  once  cast  for 
him.  F.  P.  Blair  was  then  nominated  for  Vice-President. 

The  platform  had  emphatically  declared  the  recon- 
struction acts  of  Congress  to  be  "a  usurpation,  unconsti- 
tutional, revolutionary,  and  void";  and  this  declaration 
was  made  more  prominent  by  a  previous  letter  of  the 
candidate  for  the  Vice-Presidency  (the  "Brodhead  Let- 
ter" of  June  30,  1868),  to  the  effect  that  the  President- 
elect must  "declare  these  acts  null  and  void,  compel  the 
army  to  undo  its  usurpations  at  the  South,  disperse  the 
carpet-bag  State  governments,  and  allow  the  white  people 
to  reorganize  their  own  governments."  Until  this  was 
done  it  was  "idle  to  talk  of  bonds,  greenbacks,  gold,  the 
public  faith,  and  the  public  credit."  In  other  words, 
every  issue  was  still  to  be  subordinate  to  that  of  recon- 
struction. In  the  presidential  election  the  Democratic 
candidates  were  defeated,  but  their  proportion  of  the 
popular  vote  had  risen  to  47^  per  cent.  In  the  North 
there  was  no  sign  of  a  change  in  the  electoral  vote;  in 
that  section  Democratic  electors  were  chosen  only  by 
New  Jersey,  Oregon,  and  New  York,  and  the  votes  of 
the  last-named  State,  it  was  widely  believed,  were  carried 
by  frauds  in  New  York  City.  In  the  Congress  which 
met  in  December,  1869,  there  were  15  Democrats  out  of 
72  in  the  Senate,  and  96  out  of  227  in  the  House. 

The  congressional  elections  of  1870  resulted  in  a  trifling 
increase  in  Democratic  strength.  In  the  Senate  there 

VOL.   II. 36. 


562  The  Slavery  Controversy 

were  now  17  Democrats  out  of  74,  and  in  the  House  105 
out  of  242.  The  first  term  of  President  Grant  rapidly 
developed  a  strong  feeling  in  a  minority  of  the  Republi- 
can party,  the  so-called  "Liberal  Republicans,"  that  the 
national  police  power  had  been  exercised  beyond  legal 
limits  in  the  Southern  States  since  their  reconstruction. 

This  "Liberal  Republican"  minority  in  1872  held  a 
national  convention  at  Cincinnati,  adopted  a  platform, 
and  nominated  Horace  Greeley  and  B.  Gratz  Brown,  of 
Missouri,  as  presidential  candidates. 

The  Democratic  National  Convention  met  at  Baltimore, 
July  9,  1872.  It  adopted  the  Cincinnati  platform  by  a 
vote  of  670  to  62,  and  nominated  the  Cincinnati  candi- 
dates by  votes  of  686  to  46  for  Greeley,  and  713  to  19  for 
Brown.  The  platform  was  in  reality  the  most  thoroughly 
Democratic  which  the  party  had  adopted  since  1840,  with 
the  single  exception  of  its  refusal  to  decide  for  or  against 
protection,1  and,  as  it  formally  recognized  the  validity  of 
the  last  three  constitutional  amendments,  but  demanded 
in  return  local  self-government  for  all  the  States,  it  prob- 
ably afforded  to  the  party  the  fairest  possible  avenue  of 
escape  from  the  difficulties  of  reconstruction. 

As  might  have  been  foreseen,  the  recent  bitternesses  of 
party  conflict  handicapped  Greeley  very  heavily  from  the 
beginning ;  the  number  of  Democrats  who  refused  to  vote 
far  more  than  counterbalanced  the  Liberal  Republicans 
who  voted  for  him,  and  the  Democratic  candidates  were 
defeated,  receiving  but  forty-three  per  cent,  of  the  popu- 
lar vote.  The  responsibility  for  the  result  is,  however, 
fairly  chargeable  to  the  unwise  selections  of  the  Cincin- 
nati convention ;  had  it  seen  fit  to  nominate  C.  F.  Adams 
and  an  acceptable  Democrat,  the  result  might  easily  have 
been  different.  About  thirty  thousand  Democrats  voted 
for  the  nominees  of  a  "straight-out"  Democratic  conven- 
tion, held  at  Louisville,  September  3d,  though  the  nom- 
1  See  Liberal  Republican  Party. 


Parties  after  1861  563 

inees,  Chas.  O'Conor,  of  New  York,  and  John  Quincy 
Adams,  of  Massachusetts,  declined  the  nomination,  The 
defeat  in  the  presidential  election  of  course  included  a 
falling  off  in  the  congressional  representation ;  in  the  fol- 
lowing Congress  the  Democrats  had  but  88  out  of  290 
Representatives,  the  Senate  being  almost  unchanged. 

Though  the  party  had  been  so  badly  defeated  in  1872, 
its  prospects  for  national  success  date  only  from  that 
year.  By  a  single  effort  it  had  cast  off  the  burden  under 
which  it  had  been  laboring  for  years,  had  sloughed  off 
that  great  mass  of  its  voters  who  were  Democratic  only 
on  one  point — the  memories  of  the  anti-slavery  and  re- 
construction conflicts, — and  now  stood,  for  the  first  time 
since  before  1850,  upon  the  ground  of  its  economic  prin- 
ciples, ignoring  for  the  present  the  tariff  question. 

It  would  be  unfair  to  ascribe  to  this  "new  departure" 
alone  the  growth  in  the  Democratic  vote  for  the  next 
two  years,  for  this  was  greatly  assisted  by  many  concur- 
rent circumstances  of  President  Grant's  second  term,1 
and  particularly  by  the  general  financial  distress  which 
began  to  be  felt  in  1873 ;  but  it  is  at  least  certain  that  the 
Democratic  proportion  of  the  vote  of  agricultural  districts 
began  generally  to  increase  after  1872  for  the  first  time 
since  1854.  In  1874  the  change  was  so  marked  that  the 
elections  of  the  year  were  commonly  known  as  a  "tidal 
wave."  In  the  Northern  State  elections  of  1874-5,  New 
Hampshire,  Connecticut,  New  York,  New  Jersey,  Penn- 
sylvania, Ohio,  Indiana,  Illinois,  California,  Nevada,  and 
Oregon  were  carried  by  the  Democrats ;  even  Massachu- 
setts introduced  into  her  State  government  the  phenom- 
enon of  a  Democratic  governor;  and  in  the  Congress 
which  met  in  1875  the  Democrats  had  198  out  of  292 
members  of  the  House,  though  they  still  had  less  than 
one  third  of  the  Senate. 

This  sudden  tide  of  success,  however,  in  the  North, 

1  See  United  States. 


564  The  Slavery  Controversy 

was  balanced  by  a  more  general  but  more  portentous 
success  in  the  South,  for  which  a  great  part  of  the  re- 
sponsibility must  fall  upon  the  abandonment  by  the  party 
in  1868  of  its  fundamental  principle  of  broadening  suf- 
frage. Its  action  left  no  option  either  to  Southern 
negroes  or  to  Southern  whites  and  taxpayers:  it  forced 
the  former  into  the  Republican  party,  and  compelled  the 
latter,  in  sheer  self-defence,  to  take  the  name  of  Demo- 
crat, no  matter  what  their  political  principles  might  be. 

The  consequence  was  that,  so  early  as  1874-5,  the 
whole  South,  with  the  exception  of  South  Carolina, 
Florida,  Louisiana,  and  Mississippi,  was  nominally 
Democratic,  and  a  full  half  of  the  Democratic  vote  in 
the  House  was  Southern,  comprising  in  its  ranks  Demo- 
crats, protectionists,  greenbackers,  and  internal-improve- 
ment men,  all  agreeing  firmly  on  but  one  Democratic 
doctrine,  the  right  of  each  State  to  self-government. 
The  homogeneity  of  the  party  was  thus  injured,  its  action 
hampered  and  crippled,  and  its  policy  dwarfed  to  the  care 
of  a  single  section,  thus  checking  again  the  national 
growth  which  had  fairly  begun.  Had  the  "Chase  Plat- 
form" of  universal  suffrage  been  adopted  in  1868  and 
adhered  to,  it  would  probably  not  have  affected  the  negro 
vote  in  that  year,  or  perhaps  in  1872,  but  the  party  in 
1874,  with  but  a  fair  half  of  the  Southern  vote,  would 
have  been  in  far  better  position  to  take  the  crest  of  the 
wave  of  opportunity  and  develop  again  into  a  true  national 
party.  Here,  as  always  since  1844,  the  party  felt  the 
want  of  those  leaders  who,  until  1844,  strenuously  and 
successfully  opposed  the  acceptance  of  any  issue  what- 
ever which  would  narrow  the  party  action  to  the  care  of 
a  section. 

The  national  convention  met  at  St.  Louis,  June  28, 
1876,  and  adopted  a  platform  which,  like  all  modern  pro- 
ductions of  the  kind,  was  too  long  for  popular  use  and 
better  adapted  for  a  campaign  document;  but  it  was  at 


Parties  after  1861  565 

least  almost  entirely  in  harmony  with  the  party's  heredi- 
tary principles.  It  again  accepted  the  last  three  consti- 
tutional amendments ;  it  "denounced  the  present  tariff, 
levied  upon  nearly  four  thousand  articles,  as  a  master- 
piece of  injustice,  inequality,  and  false  pretence,"  and 
"demanded  that  all  custom-house  taxation  shall  be  only 
for  revenue' ' ;  and  for  the  first  time  in  many  years  it 
relegated  the  Southern  question  to  an  entirely  subordi- 
nate position.  On  financial  questions  it  demanded  due 
preparation  before  the  resumption  of  specie  payments; 
and  the  rest  of  the  platform  was  entirely  an  indictment 
of  the  Republican  party.  On  the  first  ballot  for  a  candi- 
date for  President  the  vote  stood:  Tilden,  404^;  Hen- 
dricks,  140^;  Hancock,  75;  Wm.  Allen,  of  Ohio,  54; 
Thos.  F.  Bayard,  of  Delaware,  33;  and  37  scattering. 
Before  the  second  ballot  was  finished,  Tilden's  nomina- 
tion was  made  unanimous.  His  leading  competitor, 
Hendricks,  was  then  nominated  for  Vice-President. 

The  result  of  the  election  was  that  the  Democratic 
candidates  had  a  majority  over  all  in  the  popular  vote, 
obtained  a  majority  of  the  Representatives  to  the  suc- 
ceeding Congress,  and  claimed  a  majority  of  the  electoral 
votes,  though  this  was  finally  decided  against  them.1 
There  can  be  no  doubt  that  the  whole  party  believed 
that  the  forms  of  law  had  been  foully  perverted  to  its 
injury  in  this  decision ;  but  its  peaceful  submission  to  the 
result  was  at  least  a  useful  proof  of  the  strength  of  the 
American  form  of  government. 

The  South,  including  even  the  four  States  which  had 
formerly  been  exceptions,  was  now  solidly  Democratic, 
though  its  unification  was  not  based  upon  the  acquies- 
cence of  a  majority  of  its  voters  in  fundamental  Demo- 
cratic principles,  but  was  still  entirely  a  measure  of 
self-defence  against  the  one  overshadowing  danger  which 
the  improvident  action  of  the  Democratic  convention  in 

1  See  Disputed  Elections,  IV.  ;  Electoral  Commission. 


566  The  Slavery  Controversy 

1868  had  made  permanent.  This  solidification,  and  the 
entire  disappearance  of  the  Republican  vote  in  many 
Southern  districts,  were  skilfully  used  by  Republican 
leaders,  during  the  next  four  years,  for  the  decrease  of 
the  Democratic  vote  in  the  North  and  West;  and  the 
result  was  very  plainly  seen  in  the  congressional  elections 
of  1878.  In  the  Senate  the  Democrats  had  42  out  of  76 
members,  and  in  the  House  149  out  of  293 ;  but  30  of  the 
Senators,  and  105  of  the  Representatives,  were  from  a 
single  section,  the  South. 

Had  this  Southern  majority  been  strict  constructionist, 
pure  and  simple,  as  in  Jefferson's  time,  it  would  have  in- 
jured the  party  very  little;  but  in  fact,  outside  of  the  wish 
for  local  self-government  for  the  States,  there  was  hardly 
an  article  of  the  Democratic  creed,  from  a  revenue  tariff 
to  opposition  to  internal  improvements,  in  support  of 
which  this  nominally  Democratic  representation  from  the 
South  was  at  all  unanimous.  The  party's  prospects 
would  have  been  far  better  in  the  hands  of  a  congres- 
sional minority  wholly  devoted  to  its  principles  than  in 
those  of  a  majority  on  which  it  could  not  rely.  During 
the  period  of  its  nominal  control  of  one  or  both  branches 
of  Congress  (House,  1875-81 ;  Senate,  1879-81),  it  is 
hardly  possible  to  specify  any  point  of  Democratic  policy 
which  it  even  attempted  to  enforce,  excepting  the  re- 
duction of  Federal  expenses  and  the  freedom  of  State 
governments. 

The  national  convention  was  held  at  Cincinnati,  June 
23,  1880,  and  adopted  a  platform  which,  though  some- 
what paragraphic  and  disjointed,  was  in  the  main  in  con- 
sonance with  the  party's  principles,  though  its  financial 
paragraph  can  hardly  be  considered  entirely  Jeffersonian. 
It  declared  for  "home  rule;  honest  money,  consisting  of 
gold  and  silver  and  paper  convertible  into  coin ;  and  a 
tariff  for  revenue  only."  The  remainder  of  the  platform 
was  devoted  to  denunciation  of  the  "fraud  of  1876." 


Parties  after  1861  567 

On  the  first  ballot  for  presidential  candidates  the  vote 
stood:  Hancock,  171;  Bayard,  153^;  H.  B.  Payne,  of 
Ohio,  81 ;  A.  G.  Thurman,  of  Ohio,  68£;  S.  J.  Field,  of 
California,  65;  W.  R.  Morrison,  of  Illinois,  62;  Hen- 
dricks,  50^;  and  185  scattering.  On  the  second  ballot 
Hancock  was  nominated  by  all  the  votes  of  the  conven- 
tion, except  those  of  Indiana  for  Hendricks,  and  3  scat- 
tering. W.  H.  English  was  then  unanimously  nominated 
for  Vice-President. 

In  the  presidential  election  of  1880  the  Democratic 
candidates  were  defeated.  The  defeat  would  seem  to 
have  been  due  mainly  to  the  party's  congressional  major- 
ity, not  so  much  because  of  its  sectional  character,  after 
all,  as  because  of  its  long  influence  in  preventing  the  de- 
velopment of  a  national  party  policy.  Even  when,  late 
in  the  canvass,  the  Republican  party  elected  to  fight  upon 
Democratic  ground,  the  tariff  question,  the  party,  which 
had  had  no  education  on  the  question  from  its  own 
Representatives,  weakly  endeavored  to  avoid  it,  and  lost 
votes  by  its  weakness.  On  the  popular  vote  the  Demo- 
cratic candidates  were  slightly  in  a  minority ;  of  the  elec- 
toral votes  they  received  all  those  of  the  Southern  States, 
and  in  the  North  those  of  New  Jersey,  Nevada,  and  five 
of  California's  six  votes.  Of  the  Congress  to  meet  in 
December,  1881,  the  Democrats  elected  136  out  of  293 
Representatives,  thus  losing  the  majority  in  the  House 
for  the  first  time  since  1875;  both  parties  had  the  same 
number  in  the  Senate.  But  it  is  noteworthy  that,  for  the 
first  time  in  many  years,  nine  of  the  Southern  Represen- 
tatives were  Republicans,  an  augury,  perhaps,  of  the 
party's  release  from  the  worst  impediment  to  its  national 
development. 

In  its  history  to  the  present  time  the  party  has  had  but 
three  leaders  of  the  first  rank,  Jefferson,  Madison,  and 
Jackson.  Jackson's  name  must  be  included,  despite  his 
phenomenal  ignorance  of  very  many  of  the  commonest 


568  The  Slavery  Controversy 

subjects  of  human  knowledge;  his  skill  in  reorganizing  a 
party  out  of  chaos,  his  unerring  certainty  and  success  in 
going  to  the  very  marrow  of  unexpected  political  difficul- 
ties and  in  marking  out  the  party  policy,  his  ability  to 
lead  his  party  in  the  path  of  its  own  principles  in  spite  of 
ambitious  subordinates,  and  the  distinct  stamp  which  he 
left  upon  the  opinions  of  the  school  of  politicians  who 
succeeded  him  in  the  control  of  the  party  until  1844,  all 
show  him  to  have  been  a  leader  more  effective,  in  some 
respects,  than  either  of  the  others.  The  number  of 
leaders  of  a  lower  grade  has,  of  course,  been  very  great, 
and  the  reader  must  be  referred,  as  to  them,  to  Gillet's 
Democracy  in  the  United  States.  The  theoretical  basis  of 
the  party  has  always  been  the  principles  formulated  by 
Jefferson,  though  these  were  not  put  by  him  into  any 
connected  form,  except  in  two  instances,1  but  must  be 
sought  for  in  detached  letters  throughout  his  collected 
works,  or  in  his  messages.  His  first  inaugural  address, 
in  1801,  is  his  nearest  approach  to  the  formation  of  a  sys- 
tematic political  creed.  The  political  writings  of  William 
Leggett,  editor  of  the  Evening  Post,  of  New  York  City 
(1834-6),  are  a  collection  fully  as  valuable  to  any  one  who 
desires  to  study  the  Democratic  side  of  American  politics 
before  1844."  Since  that  year  it  has  been  the  party's  mis- 
fortune that  it  has  almost  always  been  engaged  in  com- 
bating some  one  or  more  of  its  own  fundamental  principles, 
so  that  it  is  difficult  to  give  any  general  reference  during 
this  period  which  would  not  be  more  or  less  misleading. 
Perhaps  the  Democratic  Review,  up  to  its  cessation  in 
1859,  an^  Spencer's  Life  of  T.  F.  Bayard,  would  give  a 
fairly  consistent  view  of  the  party's  application  of  its 
theory  to  the  practical  questions  of  American  politics. 
The  Jeffersonian  doctrine,  in  its  modern  form,  is  also 
given  incidentally  in  Governor  Horatio  Seymour's  lecture 

1  See  Kentucky  Resolutions  ;  Bank  Controversies,  II. 
*  See  also  Loco-Foco. 


Parties  after  1861  569 

on  "The  History  and  Topography  of  New  York,"  at 
Cornell  University,  June  30,  1870. 

The  future  of  the  party  (from  the  view-point  of  1881) 
must  be  largely  a  matter  of  speculation.  Its  destruction 
or  disappearance  is  in  the  highest  degree  improbable;  if 
there  were  no  Democratic  party  in  existence,  the  first 
consistent  policy  proposed  by  an  administration  would 
force  the  evolution  of  one.  But  it  seems  probable  that 
its  future  basis  will,  to  some  extent,  be  changed  in  the 
following  direction. 

The  Jeffersonian  basis  of  the  party,  however  useful  in 
its  time,  is  open  to  one  great  objection:  it  ignores  the 
progress  of  the  country.  It  attempts  to  lay  down  the 
rigid  rule  that  the  exercise  of  certain  derived  powers  by 
the  Federal  Government,  no  matter  how  imperatively  it 
may  be  needed,  no  matter  how  much  steam,  electricity, 
and  war  may  have  changed  the  basis  of  existence  of  the 
country,  is  still  and  always  a  violation  of  the  organic  law. 
No  party,  not  the  Democratic  party  itself,  not  Jefferson 
himself,  has  ever  lived  up  to  the  rule  in  practice ;  nor  has 
any  one  who  refused  to  live  up  to  it  felt  himself  to  be 
really  a  violator  of  law.  But  the  continued  charge  that 
a  broad  construction  of  the  Constitution  is  unlawful, 
coupled  with  the  constant  exercise  of  broad  construction 
by  all  parties  in  emergencies,  has  done  much  to  sap  the 
reverence  of  the  people  for  the  Constitution  itself,  and  to 
give  an  air  of  unreality  to  the  professions  of  Democratic 
leaders;  it  has  enabled  the  opponents  of  the  party  to 
meet  every  profession  of  Democratic  faith  with  apt  pre- 
cedents drawn  from  Democratic  theory  or  practice;  and 
it  has  again  and  again  forced  the  party  into  a  demoraliz- 
ing acceptance  of  that  which  it  had  but  very  recently  been 
denouncing  as  a  violation  of  law. 

The  change  which  is  necessary  seems  to  be  the  basing 
of  the  party  upon  expediency  rather  than  upon  claims 
of  absolute  law  in  the  matter  of  powers  which  are  fairly 


57°  The  Slavery  Controversy 

doubtful.  Of  course  there  are  powers  which  are  either 
flatly  prohibited  to  the  Federal  Government,  such  as  the 
power  to  tax  exports,  or  are  plainly  ungranted,  such  as 
the  power  to  impeach  a  private  citizen ;  as  to  these  there 
can  be  no  difference  of  opinion  in  regard  to  the  legality 
of  their  exercise  by  the  Federal  Government.  But  in 
regard  to  the  great  mass  of  doubtful  powers  the  claim 
that  it  is  inexpedient  to  exercise  them  is  a  far  more  fit- 
ting basis  for  a  great  political  party  than  the  claim  that 
it  is  illegal  to  exercise  them.  The  former  not  only  gives 
an  elasticity  to  party  action  which  is  wanting  in  the  lat- 
ter, but  implies  a  consciousness  of  strength  in  argument ; 
the  latter  is  too  often  only  a  substitute  for  argument 
and  a  confession  of  inability  to  argue  the  question  at 
issue.  There  are  many  symptoms  of  this  change  to  a 
basis  of  expediency  among  thinking  Democrats,  the  last 
and  most  noteworthy  being  the  address  of  Clarkson  N. 
Potter  before  the  American  Bar  Association  in  August, 
1881. 

The  objection  to  such  a  change  would  be,  that  it  would 
open  the  way  to  an  indefinite  latitude  of  construction  by 
a  dominant  majority  in  Congress ;  the  answer  to  the  ob- 
jection is,  that  the  dreaded  result  has  always  been  the 
practical  rule  of  American  politics,  even  in  face  of  the 
loudest  assertion  of  the  illegality  of  broad  construction, 
and  that  a  stand  upon  the  inexpediency  of  broad  con- 
struction would  relieve  the  strict-construction  party  from 
the  lengthening  chain  of  the  past  and  give  it  easier  ac- 
cess to  the  several  elements  of  the  opposing  party  in  the 
future.  The  particularist  element  in  the  United  States 
will  always  be  strong  enough  to  act  as  a  controlling  force 
upon  broad  construction,  and  the  more  highly  the  politi- 
cal sentiment  of  the  country  is  educated  the  less  necessary 
becomes  the  ultra- Jeffersonian  idea  of  the  absolute  illegal- 
ity, under  all  circumstances,  of  broad  construction. 

For  references  on  Parties,  see  pp.  225,  226,  274-279. 


Parties  after  1861  571 

NOMINATING  CONVENTIONS  are  entirely  a  modern  and 
democratic  innovation,  originating  about  the  year  1825. 
Their  development  has  come  through  the  successive  steps 
of  a  private  caucus,  a  legislative  caucus,  and  a  congres- 
sional caucus,  down  to  the  perfected  machinery  of  a 
modern  political  party's  township,  county,  State,  and 
national  nominating  conventions. 

I.  Origin. — Before,  during,  and  immediately  after  the 
Revolution,  the  inception  of  political  action  in  America 
was  mainly  controlled  by  a  series  of  unofficial  coteries  of 
leading  and  kindred  spirits  in  every  Colony,  by  whom 
resolutions  were  prepared,  intelligence  was  disseminated, 
and  occasionally  revolutionary  action  was  directly  begun. 
In  New  England  they  controlled  or  led  the  town  meet- 
ings; in  the  South  they  commonly  acted  through  the 
district  militia  organizations;  but  elsewhere  they  hardly 
preserved  any  semblance  of  connection  with  the  legitimate 
political  units.  Their  existence,  and  the  popular  acqui- 
escence in  their  action,  was  due  partly  to  the  manner 
in  which  suffrage  was  then  limited  by  property  qualifica- 
tions, so  that  the  caucuses,  or  juntos,  were  really  fair 
and  trusted  representatives  of  the  legal  voters ;  and  partly 
to  the  still  surviving  respect  for  the  influential  classes. 
Their  survival  may  be  seen  in  the  Democratic  clubs  of 
1793,  in  the  Federalist  "Essex  Junto"  and  the  Demo- 
cratic "Albany  Junto"  of  the  immediately  subsequent 
years,  in  the  Tammany  Society,  in  the  "Albany  Re- 
gency" of  1820-45,  and,  in  a  modified  form,  in  the 
various  "rings"  of  later  years.1 

Upon  the  organization  of  the  Federalist  and  Republi- 
can parties  after  1790,  their  workings  were  at  first  limited 
by  the  traditions  of  the  past.  In  a  party  of  that  time  the 
national  and  State  leaders  filled  the  place  of  a  national 
convention,  settling  the  party  policy  by  a  voluminous 
correspondence,  or  by  personal  interviews. 

1  See  Democratic  Clubs,  Albany  Regency. 


572  The  Slavery  Controversy 

The  position  of  these  leaders  was  wholly  due  to  their 
success  in  gaining  the  confidence  and  support  of  the  still 
powerful  local  caucuses;  so  that  these  latter  were  still 
the  skeleton  of  each  party  organization.  The  manner  of 
their  workings  in  the  Federalist  State  of  Connecticut 
may  serve  as  an  example.  Goodrich,  a  Federalist  in 
sympathy,  thus  describes  a  town  meeting  of  1796-1810: 

"  Apart  in  a  pew  sat  half  a  dozen  men,  the  magnates  of  the 
town.  In  other  pews  near  by  sat  still  others,  all  stanch  re- 
spectabilities. These  were  the  leading  Federalists,  persons  of 
high  character,  wealth,  and  influence.  They  spoke  a  few  words 
to  each  other,  and  then  relapsed  into  a  sort  of  dignified  silence. 
They  did  not  mingle  with  the  mass;  they  might  be  suspected 
of  electioneering.  Nevertheless  the  Federalists  had  privately 
determined,  a  few  days  before,  for  whom  they  would  cast 
their  votes,  and  being  a  majority  they  carried  the  day." 

John  Wood,  a  Democratic  writer  of  the  time,  gives  an 
exaggerated  estimate  of  the  influence  of  the  Congrega- 
tional clergy,  and  describes  the  politics  of  the  State  as 
controlled  by  Timothy  Dwight,  President  of  Yale  Col- 
lege, and  "pope  of  the  State,"  his  twelve  "cardinals  of 
the  corporation,"  and  the  multitude  of  inferior  clergy, 
whose  annual  consultation  was  held  at  the  commence- 
ment in  September;  but  clerical  influence  was  only  a  part 
of  the  wider  class  influence  which  Wood  could  not  under- 
stand. The  two  pictures  are  complementary;  and  the 
reader  can  see  their  application  to  national  affairs  in  the 
collected  correspondence  of  Hamilton,  Jefferson,  Picker- 
ing, or  any  other  political  leader  of  the  time. 

As  the  dividing  line  between  the  parties  became  more 
strongly  marked,  the  necessity  of  some  organized  guide 
to  party  action  became  more  apparent ;  and  the  percep- 
tion of  the  necessity  was  quickened  by  the  growth  of  the 
democratic  spirit  in  both  parties.  There  was  an  increas- 
ing number  of  local  leaders  who  demanded  participation 


Parties  after  1861  573 

in  the  councils  of  the  party,  and  these  found  their  natural 
means  of  expression  in  the  legislative  bodies.  As  a  part 
of  the  annual  business  of  Congress  and  the  State  legisla- 
tures, there  grew  up  a  system  of  legislative  and  congres- 
sional caucuses  of  the  members  of  each  party,  the  former 
to  make  State  nominations,  the  latter  to  make  presidential 
nominations. 

Both  these  political  means  may  fairly  be  considered  as 
dating  from  1796.  It  is  true  that  nominations  had  been 
made  in  a  few  States  by  legislative  caucuses  before  that 
year;  but  these  were  such  cases  as  the  nomination  of 
Governor  Jay  in  New  York,  in  1795,  when  members 
of  the  Legislature  merely  voiced  a  unanimous  feeling  of 
their  party  in  the  State.  It  was  not  until  after  1796  that 
the  legislative  caucus  undertook  to  decide,  among  rivals 
for  nomination,  which  should  be  entitled  to  the  support 
of  the  party.  After  1797  this  was  regularly  the  case 
everywhere.  Very  often,  however,  citizens  from  various 
parts  of  the  State  took  part  in  the  legislative  caucus,  and 
their  signatures,  in  a  separate  list,  were  added  to  the  ad- 
dress with  which  the  caucus  always  announced  its  nomi- 
nations to  its  party.  Of  course  their  presence  was  only 
allowed  as  a  make-weight,  and  not  as  a  controlling  influ- 
ence in  the  caucus,  but  it  prepared  the  way  for  the  system 
of  nominating  conventions  which  was  to  follow. 

This  final  system,  like  most  other  innovations  in  the 
American  practice  of  politics,  had  its  origin  in  New  York. 
It  was  first  suggested  in  January,  1813,  by  the  ultra- 
Democratic  "bucktail"  faction,  or  Tammany  Society,  of 
New  York  City,  then  fighting  De  Witt  Clinton,  and  ap- 
prehensive of  his  influence  over  the  Democratic  members 
of  the  legislature  out  of  New  York  City.  They  therefore 
proposed  formally  that  a  State  convention  should  be 
called  for  the  purpose  of  nominating  a  governor.  Their 
proposal  was  not  ratified  by  the  party,  and  nothing  more 
was  heard  of  it  until  1817,  when  it  was  revived  in  a 


574  The  Slavery  Controversy 

modified  form,  this  time  by  the  Clintonians.  In  a  purely 
legislative  caucus  of  either  party,  the  districts  which  had 
chosen  members  from  the  opposite  party  would  not  be 
represented;  and  in  1817  a  number  of  Clintonian  coun- 
ties, whose  members  of  the  legislature  were  Federalists, 
chose  delegates  to  represent  the  Democratic  voters  in  the 
caucus.  These  were  admitted,  and  aided  in  nominating 
Clinton. 

The  effect  was  at  once  perceptible.  Conventions  for 
the  nomination  of  members  of  the  legislature  became 
the  regular  mode  of  procedure;  the  practice  spread  to 
other  States ;  and  the  time  was  evidently  not  distant  when 
conventions  of  delegates  would  take  control  of  the  party 
machinery  in  the  State,  and  finally  in  the  nation. 

The  congressional  caucus  received  its  death-blow  in 
1824,  and  the  legislative  caucus,  as  a  State  nominating 
body,  perished  about  the  same  time.  In  both  cases  the 
reason  was  the  same:  the  old  politicians,  who  had  for 
years  controlled  the  action  of  the  dominant  party,  had 
too  strong  a  hold  upon  the  party  machinery  to  be  resisted 
in  the  regular  caucuses;  and  the  new  politicians,  whom 
the  rising  democratic  spirit  and  the  extension  of  the 
suffrage  were  together  bringing  to  the  front,  preferred  to 
try  the  issue  with  the  old  party  leaders  in  some  new 
forum.  Instead  of  the  congressional  caucus,  the  legisla- 
tures of  various  States  assumed  the  functions  of  nominat- 
ing bodies  for  the  election  of  1828.  Legislative  caucuses 
for  purely  State  nominations  were  almost  as  rapidly 
abandoned.  In  1824  they  were  still  held,  mainly  for  the 
nomination  of  electors ;  but  in  Rhode  Island  the  legisla- 
tors were  careful  to  call  themselves  "citizens  from  various 
parts  of  the  State"  ;  and  in  Pennsylvania  the  members  of 
the  legislature  led  the  way  by  calling  a  Democratic  State 
convention  to  nominate  electors.  In  New  York  the  op- 
ponents of  the  "Albany  Regency,"  hopeless  of  success 
in  a  legislative  caucus,  planned  a  delegate  State  conven- 


Parties  after  1861  575 

tion  to  nominate  John  Young  for  governor,  but  the 
Regency's  legislative  caucus  threw  them  into  confusion  by 
nominating  Young,  and  the  convention  was  not  held 
until  the  following  year.  This  (of  1824)  was  the  last 
legislative  caucus  for  State  nominations  ever  held  in  New 
York;  there,  and  in  all  other  doubtful  States,  State 
conventions  at  once  became  the  nominating  bodies. 
Thereafter  it  was  only  in  such  unilateral  States  as  South 
Carolina  that  legislative  caucuses  retained  anything  of 
their  old  unofficial  powers. 

During  Jackson's  first  term  of  the  Presidency  (1829-33) 
the  State-convention  system,  the  middle  term  of  the  great 
modern  party  "machine,"  was  well  built  up.  Awkward 
attempts  were  made  in  1830-32  (see  below)  to  erect  the 
superstructure,  the  national  convention.  The  nominal 
basis  of  parties,  the  local  township  or  county  conventions, 
were  hardly  yet  in  existence,  except  in  the  great  cities ; 
in  the  country,  nominations  and  ratifications  were  still 
made  by  mass  meetings.  Before  1835,  under  the  skilful 
management  of  Van  Buren  and  his  associates,  the  Demo- 
cratic "machine"  was  fairly  complete  in  all  its  parts,  local, 
State,  and  national  conventions ;  and  the  model  has  since 
been  only  more  finely  polished,  not  improved  upon  or 
developed.  The  Whigs  were  later  in  adopting  it.  Their 
organization  was  very  incomplete  in  1836;  in  1839-40  it 
was  better  but  was  thrown  into  confusion  by  the  mob- 
system  of  fighting  to  which  the  party  leaders  then  re- 
sorted; but  before  1844  both  parties  were  organized 
alike. 

Since  that  time  every  great  national  party  has  carried 
on  its  political  warfare  by  means  of  a  regular  army  of 
politicians,  to  whom  politics  is  a  trade,  like  war,  the 
nominating  conventions  are  the  weapons,  the  voters  are 
the  magazine,  and  the  offices,  appointive  rather  than 
elective,  are  the  causa  belli,  the  spoils  of  the  campaign, 
and  the  bond  of  party  cohesion.  Of  the  three  essentials 


576  The  Slavery  Controversy 

to  the  existence  of  the  politician  class,  it  is  not  desirable 
to  abolish  the  voters;  the  effort  to  remove  the  appointive 
offices  from  politics  has  not  yet  been  successful;  and 
no  plausible  plan  to  deprive  them  of  their  most  effec- 
tive weapons,  the  nominating  conventions,  has  yet  been 
suggested. 

II.  The  laws  which  govern  local  and  State  conventions 
are  the  ordinary  parliamentary  rules  of  proceeding.  In 
the  national  conventions  there  are  certain  special  charac- 
teristics which  have  hardened  into  laws. 

1.  Democratic    Conventions. — In    Democratic    national 
conventions  the  State  has  always  been  the  normal  voting 
unit.     The  casting  of  the  vote  of  the  State  as  a  unit,  by 
the  will  of  a  majority  of  the  delegation,  has  always  been 
recognized  as  legitimate  and  regular;  and  when  the  vote 
of  a  State  has  been  divided,  and  the  minority  of  the  dele- 
gation allowed  a  voice,  it  has  been  by  the  will  of  the  dele- 
gation, not  of  the  convention.     In  this  there  is  the  great 
difficulty  that  an  unavailable  candidate  might  be  nomi- 
nated by  the  concurrent  vote  of  a  number  of  States,  none 
of  which  could  possibly  be  carried  by  any  Democratic 
candidate.       To  counteract  this  difficulty  the  celebrated 
"two-thirds  rule"  has  always  been  the  law  of  Democratic 
national  conventions:  it  requires  that  two  thirds  of  the 
delegates  shall  vote  for  a  candidate  to  secure  him  a  nom- 
ination.    It  has  never  been  formally  settled  whether  the 
two  thirds  is  of  all  the  delegates  present,  or  of  all  the 
delegates  admitted;   but  Douglas's   and    Breckinridge's 
nominations  in  1860  both  followed  the  former  rule.     No 
votes  are  given  to  delegates  from  Territories,  since  their 
constituents   cannot   vote   at   the   elections.     For   each 
State    two    delegates    are    admitted    for    each   electoral 
vote. 

2.  Republican    Conventions.  —  A    Republican    national 
convention  consists  also  of  two  delegates  for  each  elec- 
toral vote  in  the  States;  but  six  [in  1905]  delegates  from 


Parties  after  1861  577 

each  Territory  are  admitted,  with  power  to  vote.  This  last 
feature  is  intended  to  build  up  a  party  strength  in  the 
Territories  before  they  become  States.  The  voting  unit 
has  always  been  the  congressional  district,  or  the  indi- 
vidual delegate.  Among  party  managers  there  has  always 
been  a  lurking  desire  to  introduce  the  Democratic  unit 
system  of  State  voting  and  the  "two-thirds  rule,"  but 
only  one  serious  attempt  has  been  made  to  enforce  it. 
In  1880  the  State  conventions  of  Pennsylvania,  New 
York,  and  Illinois  instructed  their  delegations  to  vote  as 
a  unit  for  Grant,  though  a  strong  minority  had  been 
elected  under  instructions  from  their  local  conventions  to 
vote  for  other  candidates.  The  national  convention  sus- 
tained the  minority  in  their  claim  of  a  right  to  cast  their 
votes  without  regard  to  the  State  convention's  instruc- 
tions. Practically,  therefore,  it  may  be  laid  down  as  the 
Republican  theory  that  the  local  conventions  in  the  con- 
gressional districts  are  to  select  delegates,  instructing 
them,  but  not  irrevocably;  and  that  the  State  conven- 
tions are  only  to  select  the  four  delegates  corresponding 
to  the  State's  senatorial  share  of  the  electoral  votes,  with 
two  additional  delegates  if  the  State  elects  a  Congress- 
man-at-large.  Any  usurpation  of  powers  by  the  State 
convention  will  be  summarily  set  aside  by  the  national 
convention. 

3.  Other  Conventions. — The  conventions  of  third  par- 
ties, or  attempts  to  form  third  parties,  are  much  more 
likely  to  follow  the  Republican  than  the  Democratic 
model,  for  they  lack  the  organized  constituency,  or 
"machine,"  which  gives  the  latter  its  form  and  is  con- 
stantly striving  to  imitate  it  in  the  former.  For  the  same 
reason  the  delegates  are,  to  a  very  great  degree,  practi- 
cally self-appointed,  or  appointed  by  little  cliques  of 
voters.  The  evolution  of  a  new  national  party  is  now 
attended  with  almost  insuperable  difficulties.  It  must  be 
the  result  either  of  the  patient  labor  of  years  in  a  clear 

VOL.  II.— 37. 


578  The  Slavery  Controversy 

field,  as  in  the  case  of  the  Democratic  party ;  or  of  a  great 
popular  movement,  sustained  long  enough  to  produce  a 
regular  army  out  of  a  mob,  as  in  the  case  of  the  Repub- 
lican party.  Until  some  successful  substitute  for  the 
convention  system  is  discovered,  we  may  consider  the 
sporadic  third  party  national  conventions  as  foredoomed 
failures. 

III.  State  and  local  conventions  have  been  so  numer- 
ous since  1825  that  it  is  impossible  to  notice  them  partic- 
ularly. The  proceedings  and  results  of  the  national 
conventions  are  given  under  the  names  of  the  various 
parties ;  it  is  only  designed  here  to  collect  the  places  and 
dates  of  the  party  conventions  preparatory  to  each  presi- 
dential election,  and  the  names  of  their  several  nominees. 
— 1832.  Anti-Masonic1:  Baltimore,  Sept.  26-28,  1831; 
Wirt  and  Ellmaker.  National  Republican  *  /  Baltimore, 
Dec.  12-14,  1831;  Clay  and  Sergeant.  Democratic: 
Baltimore,  May  22,  1832;  Van  Buren  for  Vice-President. * 
— 1836.  Democratic:  Baltimore,  May  20,  1835;  Van 
Buren  and  Johnson.  There  was  no  Whig  national  con- 
vention for  this  election.4 — 1840.  Whig:  Harrisburgh, 
Pa.,  Dec.  4-7,  1839;  Harrison  and  Tyler.  Democratic: 
Baltimore,  May  5,  1840;  Van  Buren  for  President.* 
The  "Liberty  party"  nominations'  were  made  by  a  local 
convention  in  New  York. — 1844.  Liberty:  Buffalo,  Aug. 
30,  1843;  Birney  and  Morris.  Whig:  Baltimore,  May 
I,  1844;  Clay  and  Frelinghuysen.  Democratic:  Balti- 
more, May  27-29,  1844;  Polk  and  Dallas. — 1848.  Demo- 
cratic :  Baltimore,  May  22-26,  1848;  Cass  and  Butler. 
Whig:  Philadelphia,  June  7-8,  1848;  Taylor  and  Fill- 
more.  Free-Soil:  Buffalo,  Aug.  9-10,  1848;  Van  Buren 
and  Adams. — 1852.  Democratic:  Baltimore,  June  1-4, 
1852;  Pierce  and  King.  Whig:  Baltimore,  June  16-19, 

1  See  Anti-Masonry,  I.  *  See  Whig  Party,  II. 

4  See  Whig  Party,  I.  *See  Democratic  Party,  IV. 

'See  Democratic  Party,  IV.  $See  Abolition,  II. 


Parties  after  1861  579 

1852;  Scott  and  Graham.  Free-Soil:  Pittsburgh,  Aug. 
n,  1852;  Hale  and  Julian. — 1856.  American  ("Know- 
Nothing"):  Philadelphia,  Feb.  22-25,  1856;  Fillmore 
and  Donelson.  Democratic :  Cincinnati,  June  2-6,  1856; 
Buchanan  and  Breckinridge.  Republican:  Pittsburgh, 
Feb.  22,  1856  (for  party  organization  only);  Philadel- 
phia, June  17,  1856;  Fremont  and  Dayton.  Whig:  Bal- 
timore, Sept.  17-18,  1856;  ratified  the  "American" 
nominations. — 1860.  Democratic  (Douglas) :  Charleston, 
S.  C.,  April  23~May  3,  Baltimore,  June  18-23,  1860; 
Douglas  and  Johnson;  (Breckinridge)  Charleston,  May 
1-4,  Richmond  and  Baltimore,  June  11-28;  Breckinridge 
and  Lane.  Constitutional  Union  :  Baltimore,  May  9-10, 
1860;  Bell  and  Everett.  Republican:  Chicago,  May  16— 
18,  1860 ;  Lincoln  and  Hamlin. — 1864.  Republican  (Radi- 
cal) :  Cleveland,  May  31,  1864;  Fremont  and  Cochrane; 
(Regular)  Baltimore,  June  7,  1864;  Lincoln  and  Johnson. 
Democratic:  Chicago,  Aug.  29,  1864;  McClellan  and 
Pendleton. —  1868.  Republican:  Chicago,  May  20-21, 
1868;  Grant  and  Colfax.  Democratic  :  New  York,  July 
4-11,  1868;  Seymour  and  Blair. — 1872.  Liberal  Republi- 
can :  Cincinnati,  May  i,  1872;  Greeley  and  Brown. 
Republican:  Philadelphia,  June  5-6,  1872;  Grant  and 
Wilson.  Democratic:  Baltimore,  July  9,  1872;  ratified 
the  "Liberal  Republican"  nominations. — 1876.  Green- 
back: Indianapolis,  May  17,  1876;  Cooper  and  Gary. 
Republican:  Cincinnati,  June  14-15,  1876;  Hayes  and 
Wheeler.  Democratic:  St.  Louis,  June  27-29,  1876; 
Tilden  and  Hendricks.—  1880.  Republican :  Chicago, 
June  2-8,  1880;  Garfield  and  Arthur.  Greenback: 
Chicago,  June  9-1 1,  1880;  Weaver  and  Chambers.  Demo- 
cratic: Cincinnati,  June  22-24,  1880;  Hancock  and  Eng- 
lish.— Whenever  the  above  conventions  have  been  in 
session  more  than  one  day,  the  nominations  must  be  as- 
signed to  the  last  day. — See  authorities  under  the  names 
of  the  parties. 


580  The  Slavery  Controversy 

THE  GREENBACK-LABOR  OR  NATIONAL  PARTY. — I. 
Before  the  War  of  the  Rebellion  agriculture  was  under 
many  disadvantages  in  the  Western  States  and  Terri- 
tories. Grain,  after  the  payment  of  transportation  to  a 
market,  seldom  paid  any  great  profit,  and  the  use  of  corn 
for  fuel  was  quite  common.  During  the  war  the  Govern- 
ment became  a  heavy  customer  of  easy  access,  the  mort- 
gages on  farms,  originally  due  in  gold,  were  paid  in  paper 
at  from  fifty  to  sixty  per  cent,  discount,  and  in  1865  agri- 
culture was  at  its  flood-tide  of  prosperity.  All  was  com- 
monly attributed,  however,  to  the  inflation  of  the  currency 
by  the  introduction  of  "  greenbacks, "  and  since  1865  there 
has  been  a  constant  disposition  among  many  men  of  all 
parties  in  the  agricultural  States  to  recur  to  the  inflation 
of  the  currency  as  a  remedy  for  evils  of  all  sorts, — for  the 
loss  of  the  Government  as  a  customer,  for  loss  upon  crops, 
or  for  general  financial  distress. 

Another  influence,  closely  kindred  to  the  foregoing,  is 
the  feeling  of  many  farmers  that  the  bankers,  particularly 
in  the  Eastern  States,  whom  they  suppose  to  hold  most 
of  the  bonds  of  the  United  States,  made  a  hard  bargain 
with  the  Government  in  the  time  of  its  greatest  need, 
and  have  been  trying  to  make  their  bargain  harder  ever 
since;  that,  having  paid  for  their  bonds  in  greenbacks 
worth  from  thirty-eight  to  seventy-five  cents  on  the  dol- 
lar, they  would  have  been  well  paid  in  greenbacks  at  or 
near  par;  that  they  had  influenced  Congress  to  give  them, 
in  the  act  of  March  18,  1869,  more  than  their  due  by 
making  all  bonds  payable  "in  coin,"  even  when  the  face 
of  the  bond  did  not  specify  the  medium  of  payment,  and 
that,  when  silver  began  to  decrease  in  value  as  compared 
with  gold,  they  had  again  influenced  Congress  in  1873  to 
demonetize  silver  and  thus  make  their  bonds  payable  in 
gold  alone.  These  two  influences,  aided  by  discontent 
at  the  exemption  of  United  States  bonds  from  taxa- 
tion, have  been  the  foundation  of  the  Greenback  party 


Parties  after  1861  581 

proper ;  subsidiary  influences  only  began  to  affect  it  after 
1876. 

So  early  as  1868  the  proposition  to  pay  in  greenbacks 
that  part  of  the  national  debt  not  specifically  payable  in 
coin,  particularly  the  5-20  bonds,  had  become  known  as 
the  "Ohio  Idea."  It  controlled  the  Democratic  conven- 
tion of  that  year,1  and  its  leading  advocate,  Pendleton, 
was  strongly  pressed  for  the  Democratic  nomination  for 
the  Presidency.  For  some  years  afterward  Democratic 
State  conventions  throughout  the  Western  States  reiter- 
ated the  Ohio  Idea  in  their  platforms,  but  this  had  gener- 
ally ceased  except  in  Ohio  before  1871,  and  disappeared 
in  the  coalition  of  the  Democratic  and  Liberal  Republican 
parties  in  the  following  year. 

Greenback  Party. — The  passage  of  the  Resumption 
Act  of  January  14,  1875,  committing  the  Government  and 
people  to  the  payment  of  the  debt  in  specie  in  1879, 
revived  the  Greenback  feeling.  The  proposal  of  the 
measure  had  brought  about  a  Greenback  convention  at 
Indianapolis,  November  25,  1874,  which  adjourned  after 
indorsing  by  resolution  the  three  propositions  which  have 
been  the  foundation  of  all  Greenback  platforms  since  that 
time:  I,  that  the  currency  of  all  national  and  State  banks 
and  corporations  should  be  withdrawn ;  2,  that  the  only 
currency  should  be  a  paper  one,  issued  by  the  Govern- 
ment, "based  on  the  faith  and  resources  of  the  nation," 
exchangeable  on  demand  for  bonds  bearing  interest  at 
3.65  per  cent. ;  and  3,  that  coin  should  only  be  paid  for 
interest  on  the  present  national  debt,  and  for  that  portion 
of  the  principal  for  which  coin  had  been  specifically 
promised.  The  development  of  the  new  party  was 
checked  for  a  time  by  the  continued  adoption  by  Demo- 
cratic State  conventions  of  the  three  propositions  just 
mentioned;  but  it  was  revived  again  toward  1876  by  the 
growing  likelihood  that  the  Democratic  nomination  for 

1  See  Democratic  Party,  this  chapter. 


582  The  Slavery  Controversy 

the  Presidency  would  fall  to  Governor  Tilden,  of  New 
York,  who  was  not  an  advocate  of  the  Ohio  Idea. 

A  national  convention  of  the  "Independent"  party, 
the  formal  name  of  the  party  at  this  time,  was  held  at 
Indianapolis,  May  17,  1876,  and  nominated  Peter  Cooper, 
of  New  York,  for  President,  and  Newton  Booth,  of  Cali- 
fornia, for  Vice-President.  The  latter  declined,  and 
Samuel  F.  Gary,  of  Ohio,  was  substituted.  The  platform 
indorsed  the  three  propositions  above  mentioned,  and 
demanded  the  repeal  of  the  Resumption  Act.  In  the 
presidential  election  the  Greenback  candidates  received 
81,737  popular  votes,  over  half  of  them  in  the  five  States 
of  Illinois,  Indiana,  Iowa,  Kansas,  and  Michigan. 

In  the  State  elections  of  1877  the  vote  of  the  party  rose 
to  187,095.  Greenback  State  tickets  were  nominated  in 
most  of  the  Northern  States,  though  they  had  little 
popular  strength  outside  of  the  Western  States. 

Working  men's  parties  have  always  been  occasional 
features  in  State  and  local  politics.  About  1877  they 
began  to  be  more  general,  and  the  grievances  which  led 
to  the  railroad  riots  of  that  year  gave  them  a  national 
importance.  In  some  State  elections,  as  in  Massachu- 
setts and  Pennsylvania,  the  "Labor  Reform"  and 
"Greenback"  parties  united,  and  the  union  was  made 
national  by  the  convention  of  February  22,  1878,  at 
Toledo,  Ohio.  This  convention  recognized  the  name 
"National"  for  the  party,  which  seems  to  have  been  first 
used  in  Ohio  in  1877,  but  the  usual  name  for  the  party 
continued  to  be  "the  Greenback-Labor  party."  The 
platform  added  to  the  former  Greenback  platform  some 
resolutions  in  favor  of  legislative  reduction  of  working 
men's  hours  of  labor  and  against  the  contract  system  of 
employing  inmates  of  prisons. 

In  the  State  and  congressional  elections  of  1878  the 
Greenback-Labor  vote  suddenly  rose  to  over  1,000,000, 
and  fourteen  Congressmen  were  elected  by  it.  The  in- 


Parties  after  1861  587 

a  return  to  specie  payments,  and  a  cessation  of  land 
grants  to  corporations. 

On  the  first  ballot  for  candidate  for  President,  Charles 
Francis  Adams  had  203  votes;  Horace  Greeley,  147; 
Lyman  Trumbull,  of  Illinois,  100;  B.  Gratz  Brown,  of 
Missouri,  95 ;  David  Davis,  of  Illinois,  92^ ;  A.  G.  Cur- 
tin,  of  Pennsylvania,  62;  S.  P.  Chase,  2$,  and  Charles 
Sumner,  i.  Curtin  and  Sumner  were  withdrawn  at  once ; 
Brown's  vote  fell  to  2  on  the  following  ballots;  Davis's 
vote  fell  gradually  to  6  on  the  sixth  ballot ;  and  Trum- 
bull's  rose  to  156  on  the  third  ballot,  and  then  fell  to  19 
at  the  end.  Adams's  vote  rose  on  all  six  ballots,  as  fol- 
lows: 203,  233,  264,  279,  309,  324;  and  Greeley 's  as 
follows:  147,  239,  258,  251,  258,  332.  Before  the  sixth 
ballot  was  declared,  changes  made  Greeley's  vote  482,  and 
Adams's  187.  The  former  was  thus  nominated.  On  the 
second  ballot  for  a  candidate  for  Vice-President,  B.  Gratz 
Brown  was  selected  by  a  vote  of  495  to  261  for  all  others, 
and  the  convention  adjourned.  July  9th,  the  Democratic 
National  Convention  adopted  the  platform  and  candi- 
dates prepared  for  it  at  Cincinnati.1 

The  whole  movement  had  really  failed,  so  evidently 
that  in  June  the  leaders  of  it  endeavored  to  obtain  another 
convention  from  which  the  absolute  Republican  element 
should  be  excluded.  June  2oth,  a  meeting  was  held  in 
New  York  City,  on  the  call  of  Carl  Schurz,  Jacob  D. 
Cox,  William  Cullen  Bryant,  Oswald  Ottendorfer,  David 
A.  Wells,  and  Jacob  Brinkerhoff,  and  nominated  as  presi- 
dential candidates  William  S.  Groesbeck,  of  Ohio,  and 
Frederick  L.  Olmsted,  of  New  York.  But  it  was  too 
late ;  the  new  ticket  was  not  heard  of  after  the  day  of  its 
announcement,  and  the  Greeley  campaign  went  on  to  its 
final  overwhelming  defeat."  The  result  was  entirely  due 
to  the  refusal  of  Democrats  to  vote  for  a  candidate  who 
was  their  lifelong  and  natural  opponent,  and  whom  their 

1  See  Democratic  Party,  pp.  178-205.     *  See  Electoral  Votes,  United  States. 


588  The  Slavery  Controversy 

leaders  had  evidently  only  taken  as  a  stalking  horse ;  the 
only  matter  for  wonder  is  that  the  Democratic  proportion 
of  the  total  vote  fell  off  but  three  and  a  half  per  cent, 
under  the  circumstances  (1868,  47.3  per  cent.,  1872,  43.8 
per  cent.). 

Many  of  those  who  had  originated  the  movement  re- 
turned, before  or  after  the  election,  to  the  Republican 
party ;  others  remained  in  the  opposition.  The  name  of 
the  party  survived  until  1876,  owing  to  the  presence  of  a 
few  Senators  and  Representatives  in  Congress  who  still 
held  to  it;  but  its  substance  departed  with  Greeley's  de- 
feat, if  it  had  really  survived  his  nomination.  The  only 
practical  result  was  the  "new  departure"  of  the  Demo- 
cratic party  for  the  future ;  but  it  can  hardly  be  supposed 
that  this  missionary  work  was  the  primary  object  of  the 
Cincinnati  convention. 

Authorities  should  be  sought  in  the  current  newspapers. 

On  Nominating  Conventions  see  Stanwood's  History 
of  the  Presidency ;  McKee's  National  Conventions  and 
Platforms.  These  two  books  will  give  the  platforms, 
candidates,  and  electoral  and  popular  votes  of  the  various 
parties  for  the  several  years.  See,  also,  Ostrogorski's 
Democracy  and  the  Organization  of  Political  Parties,  vol. 
ii. ;  Woodburn's  Political  Parties  and  Party  Problems  in 
the  United  States;  Carl  Becker's  "The  Unit  Rule  in 
Nominating  Conventions,"  American  Historical  Review, 
October,  1899;  "The  Rise  and  Fall  of  the  Nominating 
Caucus,"  American  Historical  Review,  January,  1900. 

For  the  Republican  Party  since  1860,  see  pp.  212-224, 
Chapter  IX. 


INDEX 


Ableman  vs.  Booth,  137,  138 
Abolition,  agitation,  42  sqq.; 
spirit  in  Revolutionary  era, 
42;  societies,  43,  44;  imme- 
diate, 45  sqq.;  leaders,  46; 
controversy  over  the  use  of 
the  mails,  47;  in  the  District 
of  Columbia,  47,  48;  final,  50 
sqq.;  in  the  Territories,  51; 
references,  63,  64 
Abolitionists,  Garrisonian,  48 ; 

political,  48 
Adams,    Charles    Francis,    268, 

418,  422,  562,  587 
Adams,  John,  6,  518,  537 
Adams,    John    Quincy,    7;   and 
the   three-fifths   compromise, 
29;  and  the  right  of  petition, 
56  sqq.;  censure  of,  57 ;  59-61 ; 
on  the  Missouri  Compromise, 
118;  178,  226,  232;  opposition 
to  the  annexation  of  Texas, 

295:  535.  54i 

Adams,  John  Quincy,  Jr.,  563 

Alabama  claims,  415  sqq.;  refer- 
ences on,  426 

Alamo,  the,  67 

"Albany  Regency,"  571,  574 

Allen,  William,  565 

"American  Anti-Slavery  So- 
ciety," 46,  53 

American  party,  232,  254,  258; 
and  the  Roman  Catholic 
Church,  261  sqq.;  on  slavery, 
263;  references  on,  278 

Amnesty,  484  sqq.;  references  on, 
506 

Anderson,  Major,  371 


Andrew,  Governor  T.  A.,  372 
"  Anti-Lecompton  Democrats," 

200,  211 
Anti-Masonic    party,    230    sqq.; 

references  on,  276 
Anti-Nebraska  men,  207 
Arbitrary  arrests,  397 
Arkansas,  admission  of,  117 
"Arm-in-arm  Convention,"  457, 

458 

Arthur,  Chester  A.,  224 

Articles  of  Confederation,  286 

Ashley,  James  M.,  219 

Astor,  John  Jacob,  75 

Astoria,  settlement  of,  75 

Atchison,  Senator,  142 

Atherton    resolutions   on   anti- 
slavery  petitions,  59 


B 


Baker,  E.  D.,  430 
Bank,  second  United  States,  182 
Banking  law,  national,  359,  380 
Banks,  N.  P.,  208,  210 
"Barnburners,"    192,  267.    See 

Free-Soil  party. 
Bayard,  Thomas  F.,  565,  567; 

Spencer's  Life  of,  568  . 

Belknap,  impeachment  case  of, 

494,  5°5 
Bell,  John,  205,  241,  254,  272, 

27.3,  301 

Benjamin,  Judah  P  ,  280 
Benton,  Thomas  H.,   179,   189, 

529 

Berrien,  Senator,  94,  241 
Bingham,  John  A.,  501 
Birney,  James  G.,  45,  48,.  49 
Black  laws,  20 


589 


590 


Index 


Blaine,  James  G.,  219,  224; 
criticism  of  Seward  on  the 
Trent  affair,  414,  415;  in  Re- 
construction, 462 

Blair,  Francis  P.,  207,  468,  561 

Blair,  Montgomery,  208,  584 

Bland  Bill,  223 

Blockade,  377 

Blount,  impeachment  case  of, 
494-496 

Botts,  John  M.,  63 

Boutwell,  George  S.,  501 

Bradley,  Justice,  552 

Breckinridge,  John  C.,  199,  203, 
301,  373 

Brodhead  letter,  468,  561 

Brown,  B.  Gratz,  562,  587 

Brown,  John,  394 

Brownlow,  Governor  W.  G.,  488 

Bryant,    William    Cullen,    208, 

584,  587 

Buchanan,  James,  78,  138,  186, 
192,  196,  198,  280,  307,  369, 
542 

Buckalew,  Charles  R.,  532 
Burgess,  J.  W.,  93 
Burlingame,  Anson,  208 
Burr,  Aaron,  291,  520,  535,  537 

sqq. 

Butler,  B.  F.,  201,  208;  contra- 
band order  of,  388;  Confed- 
erate order  for  capture,  390; 
in  impeachment  of  Johnson, 

SOJ.  S°3 
Butler,  William  O.,  192,  193 


Cadwallader,    General    George, 

397 

Calhoun,  John  C.,  on  abolition 
petitions,  57,  58;  69,  78,  91, 
120,  150,  151,  180,  182,  188, 
189,  246,  296;  last  speech, 
296,  297;  541 

California,  discovery  of  gold  in, 
89 ;  Territory  of,  121;  admis- 
sion of,  122;  153,  161 
Callender,  J.  T.,  497 
Capron,  Justice,  171,  175 
Carey's  Olive  Branch,  292 
"Carpet-bag"  government,  472 

sqq.,  489 
Cary,  Samuel  F.,  582 


Cass,  Lewis,  86;  on  the  Wilmot 
Proviso,  152,  153,  190;  nom- 
inated for  President,  192; 
193,  196,  198,  249 

Chambers,  B.  J.,  583 

Chandler,  Zachary,  368 

Channing,  William  Ellery,  44 

Charleston  convention  (1860), 
26,  157 

Chase,  Salmon  P.,  146,  155,  207, 
378,  560,  584,  587 

Chase,  Samuel,  impeachment  of, 
497,  498 

Chase,  Solon,  583,  584 

Chase  platform  of  1868,  564 

Cherokee  case,  345 

Choate,  Rufus,  252 

Civil  Rights  Bill,  216,  455,  476; 
terms  of,  482,  483;  vetoed, 
483;  references  on,  506;  559 

Civil  War,  political  events  of, 
388  sqq.;  foreign  relations 
during,  412  sqq.  See  Rebel- 
lion. 

Clay,  Cassius  M.,  213 

Clay,  Henry,  44,  49,  67,  69, 
116,  124,  125,  180,  182,  226, 
242,  246,  248,  370,  521,  541 

Clinton,  DeWitt,  573,  574 

Cobb,  Howell,  26 

Cochrane,  John,  214 

Coercion  of  a  State,  306  sqq.; 
Madison  on,  306,  307;  Bu- 
chanan on, 307 

Colfax,  Schuyler,  208,  218,  221, 
441 

Collamer,  Jacob,  207,  280 

Colonization  Society,  44,  45 

Colorado,  admission  of,  381 

Columbia    River,   discovery  of, 

75 

Compromise  of  1850,  120  sqq.; 
terms  of,  122,  123;  references 
on,  125,  126;  193,  196 

Compromises,  in  American  his- 
tory, 101  sqq.;  in  the  Consti- 
tution, 101;  on  admission  of 
Missouri,  no  sqq.;  of  1850, 
120;  references  on,  125,  126 

Confederacy,  the,  1861-1865, 
312  sqq.;  provisional  con- 
gress, 314;  constitution,  314 
sqq.;  government  of,  322, 
323;  history  of,  324  sqq.; 
references  on,  363 


Index 


59' 


Conkling,  Roscoe,  222 

Conscription  in  the  Confederate 
States,  405  sqq.  See  Drafts. 

Constitution,  of  the  Confederate 
States,  314  sqq.;  of  the  United 
States,  337  sqq.  See  Con- 
struction, State  Sovereignty. 

Constitutional  Union  party,  272 
sqq.;  references  on,  279 

Construction  of  the  Constitu- 
tion, strict,  225,  226;  broad, 
227  sqq. 

Cooper,  Peter,  582 

"Copperheads,"  556 

Corwin,  Thomas,  89,  207 

Cotton  culture,  13  sqq. 

Cotton  gin,  12 

Cox,  Jacob  D.,  587 

Crandall,  Prudence,  46 

Crawford,  William  H.,  120,  180, 

54i 
Creole  case,  61  sqq.;  references 

on,  64 

Crittenden,  John  J.,  366 
Crittenden  compromise,  366  sqq. 
Crittenden  resolutions,  378,  429 
Curtis,  Justice,  dissenting  opi- 
nion in  the  Dred  Scott  case, 
i7i, 173,  174,  176,  177;  501 
Gushing,  Caleb,  201,  204 


Dade,  Major,  massacre  of,  22 
Dallas,  George  M.,  190 
Davis,  David,  587 
Davis,  Henry  Winter,  208,  436, 

443»  445 

Davis,  Jefferson,  on  slavery  in 
the  Territories,  96;  155;  resolu- 
tions of  1860,  200;  312  sqq., 
384,  385,  390,  405 
Davis-Wade     plan    of     Recon- 
struction, 430,  436,  443  sqq. 
Dayton,  Jonathan,  528 
Dayton,  William  L.,  207,  aio 
De  Bow's  Review,  27,  28 
Declaration    of    Independence, 

Declaration  of  Paris,  1856,  415, 
416 

Democratic  clubs,  571 

Democratic  party,  178  sqq: 
platform  of  1840,  185;  agri- 
cultural element  in,  195;  re- 


lation to  slavery,  195  sqq.; 
and  strict  construction,  197; 
disruption  of,  197;  effect  of 
Kansas-Nebraska  Bill  on,  198; 
Southern  platform,  200,  201, 
203;  convention  at  Charles- 
ton, 1860,  20  r ;  references  on, 
275;  after  1861,  555  sqq.; 
platform  of  1864,  557;  plat- 
form of  1876,  564;  of  1880, 
566;  early  leaders,  567 ;  Jeffer- 
sonian  basis,  569 

Democratic  Review,  The,  194, 
568 

Dickerson,  Mahlon,  529 

Dickinson,  Daniel  S.,  214 

Dickinson,  John,  103 

Disputed  elections,  1800-1801, 
537  s<?<7-/  1824-1825,  541  sqq.; 
1836,  542;  1876,  543.  544 

Dix,  John  A.,  193,  208,  266,  457 

Dixon,  Senator,  145 

Dodge,  A.  C.,  144 

Dodge,  Henry,  268 

Donelson,  A.  J.,  254 

Doolittle,  Senator,  445,  457 

Dorr's  Rebellion,  384 

Douglas,  Stephen  A.,  87;  and 
the  Kansas-Nebraska  Bill, 
144  sqq.;  defence  of  popular 
sovereignty,  148,  149,  158; 
196,  198,  200  sqq.;  debate 
with  Lincoln,  281  sqq.;  on  the 
Dred  Scott  decision,  282 

Drafts  in  the  United  States,  40 1 
sqq.;  Conscription  Bill  of  1863, 
404;  in  general,  406  sqq. 

Dred  Scott  case,  9,  35,  36,  98, 
148,  157;  origin  of,  169;  his- 
tory of,  169  sqq.;  pleadings 
in,  170;  decision  in,  171  sqq.; 
obiter  dicta  in,  176;  references 
on,  177;  200,  483,  484 

Dwight,  Timothy,  572 


E 


Edmunds,  George  P.,  219,  224, 

533 

Election  law,  general,  359 
Electoral  Commission,  524,  543 
sqq.;   personnel   of,    546;   de- 
cision of,  in  the  Florida  case, 
546  sqq.;  proceedings  of,  552 


592 


Index 


Electoral  system,  history,  508 
sqq.;  origin,  510;  purpose,  511; 
method  of  choosing  electors, 
511  sqq.;  method  of  counting, 
514  sqq.;  perversion  of,  517 
sqq.;  Twelfth  Amendment  in, 
518  sqq.;  disputed  votes  in, 
520  sqq.;  legal  limitations  un- 
der, 524,  525;  special  enact- 
ments for,  525  sqq.;  proposed 
legislation  under,  bill  of  1800, 
528;  Benton  amendment,  529; 
the  Van  Buren  and  Dickerson 
amendments,  529;  the  Mc- 
Duffie  amendment,  530;  the 
Van  Buren  bill,  530;  the  Gil- 
mer  amendment,.  530,  531; 
the  Morton  amendment,  531; 
the  Morton  bill,  532;  the 
B  uckale w  amendment ,  532; 
the  McMillan  system,  532, 
533;  the  Edmunds  bill,  533; 
incidental  features  of,  534 
sqq.;  returning  boards,  551, 
552;  references  on,  553,  554 

Ellmaker,  Amos,  232 

Ellsworth,  Oliver,  103 

Emancipation  Proclamation,  52, 
389  sqq.;  references  on,  424 

Emerson,  Doctor,  in  the  Dred 
Scott  case,  170,  171 

Emory,  W.  H.,  relations  with 
Johnson,  501,  503 

English,  William  H.,  567 

English  Bill,  165,  166 

"Essex  Junto,"  571 

Evarts,  William  M.,  501 

Everett,  Edward,  138,  254,  272, 
273 


Farragut,  Admiral,  458 

Federal  party,  178 

Federalist,   The,   287,  337,   350, 

511 

Fessenden,  William  P.,  207,  280 
Fillmore,    President,    signs   the 

fugitive  slave  act,   132;  231, 

250,  251,  433 

Fitzpatrick,  Benjamin,  203 
Florida,     annexation     of,      22; 

slavery  in,   36;  dispute  over 

electoral  vote  (1876),  548 
Florida  treaty,  74 


Force   bills    in    Reconstruction, 

475,  476,  490 
Forsyth,  John,  241 
Fourteenth    Amendment,     127, 

216,   454  sqq.,   460,   462,   467, 

468,  487 
Franklin,     Benjamin,     plan    of 

union,  1754,  284 
Freedmen,  427 
Freedmen's    Bureau    Bill,    216, 

480  sqq.;  references  on,  506; 

559 

Freeman,  E.  A.,  358,  361 

Free-Soil  party,  50,  121,  193; 
leaders,  207,  269,  271;  266 
sqq.;  references  on,  278,  279 

Fremont,  John  C.,  51,  210; 
emancipating  order,  388 

Fries,  John,  497 

Fry,  General,  Provost-Marshal, 
407 

Fugitive  slave,  clause  in  the 
Constitution,  107,  128;  law 
of  1850,  123,  132,  133;  after 
1850,  127;  act  of  1793  con- 
cerning, 129,  130;  case  of 
Prigg,  131;  and  civil  rights, 
132,  133;  references  on,  139, 
140;  200,  201,  296,  297 


Gadsden  Purchase,  72 

"Gag-laws  "  against  anti -slav- 
ery petitions,  56  sqq. 

Garfield,  James  A.,  219,  224 

Garner,  Margaret,  134 

Garrison,  William  Lloyd,  45, 
208;  opposition  to  the  an- 
nexation of  Texas,  295 

Garrisonians,  48 

Geary,  J.  W.,  164 

Geneva  award,  423 

Gerry,  Elbridge,  286,  342,  510 

Ghent,  treaty  of,  10 

Giddings,  Joshua  R.,  resolutions 
on  the  Creole  case,  60  sqq.; 
142,  208,  251,  270 

Gilmer,  George  R.,  531 

Gist,  Governor,  302 

Goliad,  massacre  of,  67 

Goodrich,  Elizur,  572 

Grant,  Ulysses  S.,  214,  221,  224, 
376,  423,  435,  458,  473,  491, 
500,  524,  562 


Index 


593 


Graves-Cilley  duel,  60,  61 
Greeley,  Horace,  207,  220,  262; 
on  secession,   294;   389,   523, 

562,587 

Green,  Beriah,  46 
Greenback  party,  581 
Greenback-Labor  party,  580 
Groesbeck,  W.  S.,  501,  587 
Guadaloupe  Hidalgo,  treaty  of, 

72 

Guarantee   clause   of   the   Con- 
stitution, 428 
Guthrie,  James,  201,  202 

H 

Habeas   corpus,    suspension    of, 

394;  references  on,  424,  425; 

491,  492,  555,  586 

Hale,  John  P.,  207,  267,  271,  370 

Hamilton,  Alexander,  342,  357, 

402,  572 

Hamlin,  Hannibal,  213 
Hampton  Roads  conference,  433 
Hancock,  Winfield  S.,  561,  565, 

567 

Hannegan,  Senator,  79 
Harding,  Sir  John  D.,  420 
Harper's     Ferry,     insurrection, 

23,  299;  373 
Harrison,  William  H.,  187,  240, 

242 
Hartford  Convention,  the,  109, 

259,  292 

Hawkins,  Sir  John,  23 
Hayes,    President    R.    B.,    474, 

524,  544,  55?  SW- 
Haygood,  President,  on  slavery, 

17,  18 

Helper,  Roan  C.,  211,  212 
Hendricks,  Thomas  A.,  543,  561, 

565,  567 

Henry,  Patrick,  342,  346 
Henry  letters,  the,  291,  292 
Hoar,  E.  R.,  470 
Hoar,  George  F.,  533 
Hoar,  Samuel,  commissioner  to 

Charleston,  8 
Holt,  Joseph,  208 
Houston,  Samuel,  67 
Howard,  General  O.  O.,  481 
Humphreys,    W.    H.,    impeach- 
ment of,  498,  499 
"Hunkers,"  192,  265 
Hunter,  General,  388 
Hunter,  R.  M.  T.,  202,  433 


I 


Impeachments,  in  United  States 
history,  493  sqq.;  Blount's 
case,  494-496 ;  Belknap's case, 
494, 505 ;  Pickering's  case,  496 ; 
Chase's  case,  497,  498;  Peck's 
case,  498;  Humphreys' s  case, 
498,  499;  Johnson's  case,  499 
sqq.;  references  on,  507 

Impending  Crisis,  The,  Helper's, 
211 

Indiana,  admission  of,  520; 
first  electoral  vote  of,  520 

Insurrection,  slave,  21  sqq. 

Iverson,  Senator,  300 


Jackson,  Andrew,  on  the  an- 
nexation of  Texas,  68;  178 
sqq.,  238  sqq.,  541,  567,  575 

Jay,  John,  538,  573 

Jefferson,  Thomas,  on  slavery, 
12;  on  the  effect  of  slavery, 
31;  on  secession,  288;  402, 
5*8,  535,  537  sqq.,  572 

Johnson,  Andrew,  202,  208,  214, 
376,  393,  437',  "swing  around 
the  circle,"  458  sqq.;  484  sqq.; 
impeachment  of,  499  sqq.; 
House  managers  for  im- 
peachment, 501;  counsel  for 
impeachment,  501;  impeach- 
ment charges,  501,  502;  an- 
swers, 502;  559,  560 

Johnson,  Herschel  V.,  203 

_  ohnson,  Reverdy,  423 

_  ohnson,  Richard  M.,  183 

Johnston,    General   Joseph    E., 

433.  437 
Julian,    George    W.,    207,    270, 


271 


K 


Kansas,  struggle  for,  159  sqq.; 
admission  of,  166 

Kansas- Nebraska  Bill,  39,  121, 
125;  history  of,  141  sqq.; 
sectional  character  of  the 
vote  on,  147;  effect  on  parties 
of,  147,  148;  references  on, 
166  sqq.;  193,  261,  298 

"Kansas  Aid  Society,"  160 

Kelley,  William  D.,  219,  584 


594 


Index 


Kentucky  constitution  of  1850, 

38 

Kentucky  Resolutions  of  1798 
and  1799, 138,  288 

King,  Preston,  87 

King,  William  R.,  196 

"Know-Nothings,"  207,  an, 
246,  258  sqq. 

Knox,  Henry,  Secretary  of  War, 
402 

Kremer,  George,  542 

Ku-Klux  act,  585 

Ku-Klux  Klan,  220,  401,  475, 
476,  487  sqq.,  491,  492;  refer- 
ences on,  506,  507 


Lane,  Joseph,  204 

Lecompton  struggle,  the,  165, 
166,  200,  280 

Leggett,  William,  568 

Lewis  and  Clark  expedition,  75 

Liberal  Republicans,  220,  562, 
584  sqq. 

Liberator,  The,  45,  53 

Liberia,  45 

Liberty  party,  49,  50,  191,  267 

Lincoln,  Abraham,  207,  210, 
212  sqq.;  reconstruction  pol- 
icy, 215;  assassination  of,  215; 
candidate  for  Senator,  280, 
281;  debate  with  Douglas, 
281  sqq.;  election  to  the  Presi- 
dency, 301 ; 322, 325,  373,  388; 
Emancipation  Proclamation, 
389  sqq.;  433,  435,  484,  524 

Livingston,  Edward,  356 

Loco-focos,  186,  255  sqq. 

Logan,  John  A.,  208,  501 

Louisiana,  slavery  in,  36,  37; 
dispute  over  electoral  vote 
(1876),  549 

Lovejoy,  Elijah  P.,  46 

Lovejoy,  Owen  P.,  208 

Lundy,  Benjamin,  44,  45 

Luther  vs.  Borden,  429 

Lyons,  Lord,  414 


M 


McCardle,  William  H.,  case  of, 

469 
McClellan,  George  B.,  558 


McDuffie,  George,  530 
McLean,      Justice,      dissenting 
opinion    in    the    Dred    Scott 
case,  171,  173,  174 
McLeod  case,  396 
McMillan  system  for  the  Elec- 
toral College,  532,  533 
McPherson,  James  B.,  376 
Madison,  James,  44 ;  on  coercing 

a  State,  306  sqq. 
Maine,  admission  of,  115 
Mangum,  Willie  P.,  240 
Mann,  Horace,  270 
Marcy,  William  L.,  196,  266 
Marshall,  John,  528,  539 
Marshall,  Thomas  P.,  60 
Mason,  George,  on  slavery,  n 
Mason,  J.  M.,  in  the  Trent  affair, 

413.  4i4 

Mason,  John  Y.,  138 

Mason  and  Dixon's  line,  3,  n 

Maysville  road  bill,  181 

Merryman  case,  397 

Mexican  war,  cause  of,  69;  247 

Michigan,  first  electoral  vote, 
522 

Militia  act  of  1861,  429,  430 

Milligan  case,  399,  400 

Mississippi  vs.  Johnson,  466 

Mississippi  plan  in  Reconstruc- 
tion, 473,  474 

Missouri,  admission  of,  30,  37; 
increase  in  area  of,  37;  Terri- 
tory of,  in;  objections  to  the 
constitution  of,  119;  first 
electoral  vote  of,  521 

Missouri  Compromise,  repeal  of, 
39,  141  sqq. ;  enactment  of, 
no  sqq. ;  author  of,  115; 
terms  of,  115;  Monroe  on, 
116;  effects  of,  118;  Jefferson 
on,  118;  John  Quincy  Adams 
on,  118;  references  on,  125, 
126;  effect  of  the  compromise 
of  1850  on,  142;  155,  169,  176, 
197 

Monroe,  James,  on  the  Missouri 
\  Compromise,  116;  120,  403 

Monroe  Doctrine,  the,  78,  413 

Morris,  Gouverneur,  on  slavery, 
n,  287;  510 

Morris,  Thomas,  48,  49 

Morrison,  W.  R.,  567 

Morton,  Oliver  P.,  219,  221 
sqq-,  S31.  532 


Index 


595 


N 


Nashville  convention  of  1850, 
156 

National  Republicans,  233  sqq. 

Nebraska,  Territory  of ,  141  sqq.; 
admission  of,  381,  461 

Nelson,  T.  A.  R.,  501 

Nevada,  admission  of,  381 

New  England  Emigrant  Aid 
Society,  160 

New  Jersey  plan  of  the  Con- 
stitution, 103 

New  Mexico,  slavery  in,  39;  72, 
97,  121,  123-125,  143-145 

New  Orleans  riot,  459,  460 

Nominating  conventions,  57 1 
sqq.;  Democratic,  576;  Re- 
publican, 576,  577;  list  of, 

577-579.  588 

"Non-intervention  "  as  to  slav- 
ery, 157.  See  "Popular  sov- 
ereignty." 

Nootka  Sound  Convention,  74 
Nullification,  of  personal-liberty 
laws,  138;  293 


O 


O'Conor,  Charles,  563 
Olmstead  case,  345 
Olmsted,  Frederick  L.,  587 
Ord,  General,  466 
Ordinance  of  1787,  34  sqq.,  82 
Oregon,    in    relation    to    Texas, 
69;    limits    of,    73;    claim    of 
Russia  to,  73;  claim  of  Spain 
to,  73;  claim  of  Great  Britain 
to,    74;  claim  of  the  United 
States  to,  74  sqq. ;  settlement 
of,  75;  as  a  political  issue,  77; 
treaty  of,   80;  references  on, 
81;  organization  of,   87;  dis- 
pute over  electoral  vote  (1876), 

550 

Osceola,  war  with,  22 
Ostend  Manifesto,  138,  139 


Pakenham,  British  Minister,  78 
Parties     after     1861,    555    sqq. 
See    Democratic    party,    Re- 
publican party,  etc.,  Political 
parties. 


Partus  sequitur  ventrent,  2,  g,  16 

Pastorius,  Francis  D.f  4 

Patton  resolution  on  anti-slav- 
ery petitions,  59 

Peace  conference,  1861,  367 

Peck,  James  H.,  impeachment 
of,  498 

Pendleton,  George  H.f  on  Re- 
construction, 431,  432;  558, 
560 

Personal-liberty  laws,  134,  135 
sqq. 

"Pet  banks,"  183 

Petition,  right  of,  54  sqq.; 
struggle  over  an ti -slavery,  55 
sqq. 

Phillips,  Wendell,  46,  2O&,  453 

Pickens,  Governor,  371 

Pickering,  John,  impeachment 
of,  496 

Pickering,  Timothy,  572 

Pierce,  President,  162,  163,  186, 
196,  198,  433 

Pierppnt  government,  of  Vir- 
ginia, 436,  441 

Pinckney,  C.  C.,  105,  106;  on 
the  fugitive  slave,  128;  333, 
528 

Pinckney's  resolutions  on  anti- 
slayery  petitions,  55 

Political  parties  after"  1824,  178 
sqq.  See  Parties,  Democratic 
party,  Republican  party,  etc. 

Polk,  James  K.,  49,  69,  70,  71, 
86,  186,  190,  191,  246 

Pope,  General  John,  466 

"Popular  sovereignty,"  87,  95, 
148  sqq. 

Port  Royal,  capture  of,  375 

Potter,  Clarkson  N.,  570 

Prigg  vs.  Pennsylvania,  131,  135 

Privateers  in  the  Civil  War, 
415  sqq. 


Quincy,  Josiah,  290 


Ramsay,  Dr.,  History  of  the 
Revolution  in  South  Carolina, 
33° 


59^ 


Index 


Randolph,  Edmund,  102 

Randolph,  John,  on  the  Mis- 
souri Compromise,  116;  497, 
521 

Rawle,  Judge,  on  State  sover- 
eignty, 293 

Raymond,  Henry  J.,  217,  457 

Rebellion,  the,  365  sqq.;  refer- 
ences on,  386,  387 

Reconstruction,  definition,  427; 
difficulties  of,  427,  428; 
theories  of,  430  sqq.;  Davis- 
Wade  plan,  430,  436,  443; 
Democratic  view  of,  431,  432; 
Lincoln  on,  434;  provisional 
governors,  438;  Congressional 
plan,  446  sqq.;  vagrancy  laws, 
448  sqq.;  acts  of,  462  sqq.; 
work  of,  465  sqq.;  Supreme 
Court  on,  469,  470,  475; 
failures  of,  471  sqq.;  Missis- 
sippi plan,  473,  474;  force 
bills  in,  475,  476;  successes 
of,  476  sqq.;  references  on, 
478,  479;  Freedmen's  Bureau, 
480  sqq.;  amnesty,  484  sqq.; 
"Carpet-baggers"  and  "Scal- 
awags," 489 

Reeder,  A.  H.,  160,  163 

Republic  of  Republics,  352,  363 

Republican  party,  platform  of 
1860,  97;  147;  origin  of,  205 
sqq.;  early  principles  of,  206; 
constituent  elements,  207; 
early  leaders,  207,  208;  name 
for,  209;  first  presidential 
candidate,  210;  rallying  cry 
of  1856,  210;  nomination  of 
Lincoln,  212,  213;  radical 
wing  of,  1864,  214;  conven- 
tion of  1864,  214;  of  1868, 
218;  of  1872,  220;  of  1876, 
222;  of  1880,  223,  224;  refer- 
ences on,  276 

Revels,  H.  R.,  473 

Revenue  Amendment  under 
the  Confederation,  107,  108 

Rhett,  R.  B.,  91,  93,  120, 
136 

Rhode  Island  case,  469.  See 
Dorr's  Rebellion. 

Ritner,  Joseph,  232 

Rives,  William  C.,  183 

Robinson,  Charles,  Governor, 
162 


Ross,  James.  528 
Russell,  Lord  John,  420 


Sanford  vs.  Scott,  170  sqq.  See 
Dred  Scott  case. 

Santa  Anna,  67,  72,  84 

Schurz,  Carl,  586,  587 

Scott,  Winfield,  248 

Secession,  relation  of  slavery  to, 
32,  136,  137;  movement  for, 
280  sqq.;  right  of,  examined, 
283  sqq.;  theory  of,  285  sqq.; 
Jefferson  on,  288;  Josiah 
Quincy  on,  290;  during  War 
of  1812,  291  sqq.;  relation 
to  nullification,  293;  Horace 
Greeley  on,  294;  process  of, 

294  sqq.;     by     co-operation, 

295  sqq.;  Calhoun's  influence, 
295    sqq.;   causes    promoting, 
297  sqq.;  States  engaging  in, 
304,    305;    coercion    in,    306; 
Buchanan   on,  307;  Supreme 
Court  on,  309;  references  on, 

310.  311 

Sedition  Law,  497 

Seminole  War,  22 

Sergeant,  John,  236 

Seward,  William  H.,  207,  231, 
251;  "Irrepressible  Conflict" 
speech,  281;  312,  371;  diplo- 
matic correspondence  of,  413; 
treatment  of  the  Trent  affair, 
414,  415;  on  the  Declaration 
of  Paris,  416;  433,  435 

Seymour,  Horatio,  266,  389, 
568 

Seymour,  Thomas  H.,  558 

Shannon,  Wilson,  in  Kansas, 
164 

Sheridan,  Gen.  P.  H.,  376,  459, 
466 

Sherman,  John,  207,  224 

Sherman,  Roger,  510 

Sherman,  Gen.  W.  T.,  375,  376, 

433 

Sickles,  Daniel,  208,  450 
Slave-holders,  number  of,  28-30; 

in  Congress,  3 1 ;  Jefferson  on,  3 1 
Slave  population,  28 
"Slave    power,"    and    suffrage 

clause,  28  sqq. 
Slave  representation,  28,  29 


Index 


597 


Slave  trade,  foreign,  23  sqq.,  30; 
domestic,  27  sqq.;  in  the  Dis- 
trict of  Columbia,  123 

Slavery,  in  the  Colonies,  i ;  in- 
troduction of,  2,  3;  under  the 
Confederation,  10;  compro- 
mises of  the  Constitution  on, 
10 ;  difference  North  and 
South,  10,  ii ;  Gouverneur 
Morris  on,  1 1 ;  George  Mason 
on,  n;  Jefferson  on,  12;  in- 
fluence of  inventions  on,  12; 
influence  on  land,  13  sqq.; 
statistics  on,  16;  basis  in  cus- 
tom, 18;  laws  on,  19  sqq.;  in 
relation  to  State  rights,  32; 
in  relation  to  secession,  32; 
historical  influence  of  33;  in 
Territories  and  new  States, 
33  sqq.,  94,  95;  abolished  in 
Mexico,  38;  limits  of  exten- 
sion, 38;  in  Mexican  cessions, 
39,  93;  references  on,  40,  41; 
Southern  doctrine  on,  in  Ter- 
ritories, 93,  94 

Slidell,  John,  413,  414 

Smith,  Gerrit,  48 

Sommerset  case,  i,  8 

Soule,  Pierre,  138 

South  Carolina,  reasons  for 
secession,  136,  137;  181,  313 

Specie  circular,  184 

Spinning  jenny,  12 

Stanbery,  Henry,  501 

Stanton,  Edwin  M.,  208,  398, 
499,  500,  502  sqq. 

Star  of  the  West,  371 

State  rights,  353  sqq. 

State  sovereignty,  326  sqq.; 
references  on,  363 

Stephens,  A.  H.,  27,  120,  241, 
303,  321,  365,  433 

Stevens,  Thaddeus,  207,  249, 
432 ;  theory  of  Reconstruction, 
440,  453;  on  the  Fourteenth 
Amendment, 45 4;  462,484,501 

Story,  Justice,  on  the  fugitive 
slave  act  of  1793,  131;  291 

Sub-treasury  system,  184,  191 

Sumner,  Charles,  141,  145,  210, 
220,  270;  on  the  Trent  affair, 
415;  theory  of  Reconstruc- 
tion, 439,  453;  484,  587 

Sumner,  Colonel,  162 

Sumter,  Fort,  371,  416 


Tallmadge,  James,  in,  120 

Tammany  Hall,  256,  571,  573 

Taney,  Chief  Justice,  35;  on  the 
fugitive  slave  act  of  1793, 
131;  171,  176,  280,  397,  433 

Tariff,  compromise  act  of  1833, 
187;  act  of  1842,  187 

Taylor,  John  W.,  520 

Taylor,  Zachary,  248 

Tenure-of- Office  Act,  500,  503 
sqq. 

Terry,  General,  448 

Texas,  38,  49,  66  sqq.;  attempt 
of  the  United  States  to  buy, 
67;  annexation  of,  68  sqq., 
84;  resolutions  for  annexa- 
tion, 70;  references  on,  80, 
81;  121,  189,  191;  opposition, 
to  annexation,  295 ;  vs.  White, 
469 

Thirteenth  Amendment,  380, 
393.  483 

Thomas,  Gen.  George  H.,  375, 
466 

Thomas,  Jesse  B.,  proposes 
Missouri  Compromise,  115, 
116 

Thomas,  Lorenzo,  500 

Thompson,  George,  46 

Thompson,  Waddy,  57 

"Three-fifths  compromise,"  28; 
proposed  repeal  of,  29,  109; 
107  sqq. 

Thurman,  A.  G.,  567 

Tilden,  Samuel  J.,  543,  550  sqq., 
565,  582 

Toombs,  Robert,  241,  249 

Topeka  Constitution,  162,  164 

Town  meeting  in  1796,  572 

Treason,  383;  references  on,  387 

Trent  affair,  the,  413  sqq.;  refer- 
ences on,  426 

Trist,  N.  P.,  72 

Troup,  Governor,  of  Georgia, 
238 

Trumbull,     Lyman,     208,     584, 

587 
Tucker's   Blackstone,  on  State 

sovereignty,  289 
Turner,  Nat,  insurrection,  22 
Twelfth  Amendment,  508;  effect 

on  electoral  system,  518  sqq.; 

529.  537 


598 


Index 


Twenty-first  rule,  on  Abolition 

petitions,  59 
Two-thirds  rule  in  Democratic 

conventions,  576,  577 
Tyler,  John,  69,  183,  187,  189, 

240,  367  sqq.,  559 

U 

Underground  Railroad,  50 
Upper  California,  72 
Utrecht,  treaty  of,  23 


Vagrancy   laws   of   the   South, 

1865,  448  sqq. 
Vallandigham,  Clement  L.,  431, 

Vallandigham  case,  389,  398 
Van  Buren,  John,  270 
Van  Buren,  Martin,  67-69,  182- 
184,  241,  257,  266,  267,  529, 

575 

Vancouver,  exploration  of,  74 
Vesey,    Denmark,   insurrection, 

22 

Vicksburg,  capture  of,  375 
Virginia  plan  of  the  Constitu- 
tion, i 02,  103 
Von  Hoist,  on  State  rights,  354 

W 

Wade,  Benjamin,  436,  443,  445 
Walker,  Robert  J.,  Governor  of 

Kansas,  164  sqq. 
"War  Democrats,"  584 
Washburne,  E.  B.,  224 
Washington,  Bushrod,  44 
Washington,  treaty  of,  423 
Watt's  steam-engine,  12 
Wayne,  Justice,  176 
Weaver,  James  B.,  583 
Webb,  James  Watson,  239 
Webster,    Daniel,    91;    on    the 

Wilmot  Proviso,  92;  226,  242, 

248,  252  sqq. 

Webster- Ashburton  treaty,  25 
Weed,  Thurlow,  231 
Wells,  Gideon,  208 


West  Virginia,  history  of,  408; 
references  on,  425;  441 

Wheeler,  W.  A.,  544 

Whigs,  on  the  Wilmot  Proviso, 
87;  147,  182;  campaign  of 
1840,  185  sqq.,  243;  207;  ori- 
gin, 233  sqq.;  relation  to  the 
Federalist  party,  234  sqq.; 
heterogeneous  character  of, 
237  sqq.;  name,  239;  leaders, 
244;  in  campaign  of  1844, 
245 ;  on  annexation  of  Texas, 
246;  convention  of  1848,  248; 
Southern  wing,  249;  "con- 
science" and  "cotton,"  250; 
convention  and  platform  of 
1852,  251  sqq.;  dissolution, 
254;  references  on,  274,  277 

Whiskey  Insurrection,  360 

White,  Hugh  L.,  183  sqq.,  238 

Whitney,  Eli,  12 

Whittier,  John  G.,  46,  48 

Wilkes,  Captain,  of  the  San 
Jacinto,  413,  414 

Wilmot,  David,  82,  85,  207,  210, 
270 

Wilmot  Proviso,  82  sqq.,  88; 
after  compromise  of  1850,  95 
sqq.;  final  establishment  of, 
97  sqq.;  references  on,  99, 
100;  120,  121,  123;  Cass  on, 
152;  Southern  Democrats  on, 
154;  192,  200,  247,  296 

Wilson,  Henry,  208,  218,  221, 
271,  404 

Wilson,   James,    108,   343,   354, 

501,  5i° 

Wirt,  William,  232 
Wisconsin,  personal-liberty  laws 

in,    344;    disputed    electoral 

vote  of,  522 

Wise,  Henry  A.,  60,  6i,  299,  308 
Wood,  Benjamin,  432 
Wood,  Fernando,  432 
Wood,  John,  572 
Wright,  Silas,  190,  266 


Yancey,   William  L.,   120,   153, 

192 
Yeamans,  Governor,  4 


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King,  M.D.     6  vols. 
Limited  to  750  sets .     NOVJ  complete. 


P.  PUTNAM'S  SONS,  New  York  and  London 


AMERICAN  HISTORY 

7.  James  Monroe.     The  Works  of  James  Monroe.     Edited  by 

S.  Hamilton,  of  the  Department  of  State.     To  be  completed  in 

six  or  seven  volumes. 

Limited  to  750  teti.    In  course  of  publication.     Volume  6  in  press. 

8.  James  Madison.  The  Writings  of  James  Madison.  Edited 

by  Gaillard  Hunt.     To  be  completed  in  eight  or  nine  volumes. 
Limited  to  i$o  sets.    In  course  of  publication.     Volume  3  in  press. 

9.  Samuel  Adams.      The  Works  of  Samuel  Adams.      Edited 

by  Harry  Alonzo  Gushing.     4  vols.     (In  preparation.) 

xo.  John  Marshall.  The  Constitutional  Decisions  of  John 
Marshall.  Edited,  with  an  Introductory  Essay,  by  John  G. 
Palfrey,  of  the  Massachusetts  Bar.  (In  preparation.) 


OTHER  IMPORTANT  WORKS  IN  AMERICAN 
HISTORY 

The  Life  and  Correspondence  of  George  Mason  of  Virginia. 

Edited  by  Kate  Mason  Rowland.  With  an  Introduction  by 
Gen.  Fitzhugh  Lee.  With  portrait  of  Mason  and  fae-simile  of 
the  Bill  of  Rights.  2  vols.,  8°,  net,  |8.oo. 

The  Life  of  Charles  Carroll  of  Carrollton.  With  his  Letters 
and  Public  Papers.  By  Kate  Mason  Rowland.  2  vols.,  illus- 
trated, 8°.  Per  set,  net,  $6.00. 

The  Writings  of  Thomas  Paine.  Political,  Sociological,  Re- 
ligious, and  Literary.  Collected,  edited,  and  chronologically  ar- 
ranged by  Moncure  Daniel  Con  way.  4  vols.,  8°,  half  leather, 
gilt  tops.  Per  volume,  $4.00. 

In  this  style  limited  to  150  numbered  copies.    A  Iso  issued  in  cloth  at  $0.50 
per  volume. 

Popular  Edition.  With  Introduction  and  Notes.  I.  Rights 
of  Man.  Part  I.  Being  a  reply  to  Mr.  Burke's  attack  on  the 
French  Revolution.  With  frontispiece,  8°.  $1.00. 

II.  The  Age  of  Reason.  Being  an  Investigation  of  True 
and  Fabulous  Theology.  8°.  $1.25. 

The  Life  of  Thomas  Paine.  By  Moncure  Daniel  Conway.  2 
vols.,  8°,  illustrated.  Pp.  xviii.  -j- 380 -j- 489.  $5.00. 

The  Thirteen  Colonies.  By  Helen  Ainslie  Smith.  Author  of 
"One  Hundred  Famous  Americans,"  etc.  (Nos.  60  and  61  in 
the  "Story  of  the  Nations"  Series.  Two  vols.,  12°,  fully  il- 
lustrated. Cloth,  each,  $1.50.  Half  leather,  each,  $1.75. 


Q.  P.  PUTNAM'S  SONS,  New  York  and  London 


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